People v. Williams

Filed 12/19/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S118629

v. )

)

ROBERT LEE WILLIAMS, JR., )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. CR64075

____________________________________)

Defendant Robert Lee Williams, Jr., was convicted by a jury of two counts

of first degree murder (Pen. Code, § 187; all further statutory references are to the

Penal Code unless otherwise indicated), one count of attempted murder (§§ 187,

664), and one count of sexual penetration with a foreign object (§ 289, subd. (a)).

The jury found true the special circumstance allegations that defendant committed

multiple murders (§ 190.2, subd. (a)(3)) and committed the murders during the

commission of robbery (§ 190.2, subd. (a)(17)), burglary (§ 190.2, subd. (a)(17)),

and torture (§ 190.2, subd. (a)(18)). The jury also found true the allegations that

defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8))

and inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).

Following the penalty phase trial, the jury returned a verdict of death.

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,

subd. (b).) For the reasons that follow, we affirm the judgment.

1

I. FACTS

A. Guilt Phase

1. Prosecution Case

On the night of July 15, 1995, defendant and two accomplices entered the

residence of Gary Williams and robbed and murdered him and his father, Roscoe

Williams. (Because the victims and defendant share the same surname, we refer

to the victims by their first names. The victims were not related to defendant.)

The men also sexually assaulted and attempted to murder Gary’s girlfriend, Conya

L., but she escaped through a bedroom window.

a. Robert Scott

Robert Scott testified that he and Gary, working together, had committed

over 20 armed robberies of credit unions during the early 1990s. On July 4, 1995,

Scott and Gary were sitting in Gary’s truck when defendant pulled up alongside in

his car. Defendant got out of his car, grabbed Gary, and pressed a black nine-

millimeter semiautomatic handgun against Gary’s neck, saying, “I know you

niggers out there getting licks and I want my share of the money.” Scott testified

that the term “lick” describes the proceeds gained from a completed robbery.

Defendant threatened that if Gary failed to meet his demand, defendant would kill

Gary and his family.

Gary and Scott decided to rob a credit union so they could pay defendant

and make money for themselves. On July 10, 1995, the men robbed an Orange

County credit union. Gary provided the guns and acted as the lookout while Scott

and another man, Curtis Jackson, entered the credit union and stole $56,000. Scott

and Jackson were captured following a high-speed police chase, but Gary fled in a

different car and escaped.

2

b. Conya L.

Conya L. testified that she and Gary had been romantically involved for

about a year, and that she was aware Gary made his living robbing credit unions.

On the evening of July 15, 1995, Conya L. and Gary went out to dinner. As they

drove back to Gary’s home in Moreno Valley, Gary informed Conya L. that he

needed to hurry back to the house because he had a meeting. Conya L. understood

that Gary was meeting Ronald Walker, who was known as “Boochie” or “Black,”

to buy a gun. As they turned onto Gary’s street, they drove past a burgundy

vehicle.

Upon arriving at Gary’s house, Conya L. observed that Gary’s father

Roscoe was waiting outside. The group entered the house, and Conya L. went

upstairs. From the master bedroom, she overheard Gary and Roscoe talking

downstairs. Roscoe said he was going to the store and asked Gary for money.

Gary gave Roscoe some money, and Roscoe left for the store.

From the bedroom window, Conya L. saw three men — defendant, Ronald

Walker, and a third man who was never identified or prosecuted (third perpetrator)

— leave a burgundy sedan and walk across the street toward the house. Defendant

was carrying a black case. As the men approached, Conya L. heard Gary say,

“Man, you didn’t see me and my girl? We passed you.” One of the men replied:

“Nah, nigger. I was rolling a joint.” When the three men and Gary went inside

the garage, Conya L. could hear “mumbled” talking.

Shortly thereafter, Walker appeared in the master bedroom and pointed a

gun at Conya L. Walker was wearing a pair of yellow dishwashing gloves but no

mask. He was soon joined by defendant, who was also wearing yellow

dishwashing gloves but no mask. Defendant ordered Conya L. to remove all of

her jewelry, which he then stuffed in his pocket. Because the suspects were

wearing gloves but not masks, Conya L. believed they intended to kill her.

3

Defendant asked Conya L., “bitch where’s the money?” When Conya L.

said she did not know, defendant directed Walker to tie her up. Walker bound

Conya L.’s hands behind her back with duct tape, and defendant used a lamp cord

to tie her ankles. Defendant threatened to rape and kill Conya L. if she failed to

disclose the location of the money. The third perpetrator, also wearing yellow

dishwashing gloves and no mask, then came upstairs and discussed stealing Gary’s

clothes and shoes. Defendant told him to go back downstairs to “stay on duty.”

Defendant then ransacked the master bedroom, stealing gold chains and jewelry.

Eventually Roscoe returned from the store and called for Gary to let him in.

Defendant instructed the third perpetrator to “snatch his ass in the house.” Conya

L. heard the front door open and defendant command, “get the fuck in here, old

man. Don’t you say a motherfucking word.” The door slammed closed.

Defendant ordered his cohorts to bring Gary and Roscoe upstairs. Gary and

Roscoe, with their hands and feet bound, were dragged upstairs and laid in the

hallway; Conya L. observed that Gary’s eye was bloody and swollen shut. Gary

disclosed that money was hidden in a cologne bag in the master bathroom.

Dissatisfied with the amount found in the bag, defendant said: “That ain’t all the

money . . . . Gary just hit two banks back to back.”

Defendant then forced Conya L. into a bathroom. He shut the door,

instructed Conya L. to remove her shorts, and pulled down her underwear. He

then removed one of the yellow rubber gloves and, using up to three fingers,

digitally penetrated Conya L.’s vagina several times. Defendant paused when

Gary called asking to speak with him. During the encounter, Gary referred to

defendant as “Rob.” Upon exiting the bathroom, defendant said to the others:

“Do his old man in front of him.”

The third perpetrator went downstairs and returned with brown plastic trash

bags. He drew one of the plastic bags tightly over Roscoe’s head. Conya L.

4

testified that at that juncture, Roscoe did not appear to have been gagged with duct

tape. Walker placed Gary in a choke hold and began choking him. Defendant

then grabbed Conya L. and placed her in a choke hold, rendering her unconscious.

Conya L. testified she felt like she was in a dream state as she lay face up on the

ground with defendant leaning over her, cutting her throat with a knife. Defendant

complained that the straight-edge knife was dull and ordered the third perpetrator

to get him a serrated one. Defendant then began cutting Conya L.’s throat with the

serrated knife. At that point, the phone rang. Conya L. saw beams from a car’s

headlights suggesting that a car was in the driveway.

All three men went downstairs, leaving Conya L. alone. Conya L. dialed

911, but upon hearing the men coming back upstairs, she left the 911 connection

on, climbed out the window, and jumped to the ground below. Naked from the

waist down, Conya L. ran from the house. After crying for help, she eventually

lay down in the street, and police found her a short time later.

c. Deputy David Glen Kirkendall

Riverside County Sheriff’s Deputy David Glen Kirkendall testified that he

responded to the 911 call and arrived at Gary’s house just before 11:00 p.m. Upon

arriving, Deputy Kirkendall knocked on the front door. When no one responded,

he opened the garage and saw a pool of blood. He contacted police dispatch to

report his finding and was informed that the office had received numerous 911

calls regarding a woman in distress. Deputy Kirkendall hurried around the block

and saw Conya L. naked and “covered in blood.” When Conya L. pulled her hand

away from her throat, blood began pouring out.

d. Michelle Contreras

Gary’s across-the-street neighbor Michelle Contreras testified that on the

night in question she observed four cars rapidly accelerate away from Gary’s

house in the same direction of travel. One of the cars was Gary’s Chevy Cavalier,

5

and another was an El Camino that Gary had been storing for a friend. The

Cavalier and El Camino were recovered by police in the following days, and

yellow dishwashing gloves were found inside the El Camino.

e. Sheriff’s Investigator Brian Robert Fountain

Riverside County Sheriff’s Investigator Brian Robert Fountain testified that

law enforcement personnel found the bound bodies of Gary and Roscoe inside

Gary’s home. Both victims’ mouths were covered with duct tape. Two knives,

one serrated and one with a dull straight edge, were recovered near the bodies. An

empty black gun case was found in the street in front of the house. By stipulation,

the parties agreed that neither defendant’s nor Walker’s fingerprints or palm prints

were found in the house or on the gun case. Nor did any of the shoeprints located

in the house match any of the shoes subsequently confiscated from defendant or

Walker. Additionally, neither defendant’s nor Walker’s fingerprints were found

on the yellow rubber gloves that were discovered inside the El Camino.

f. Forensic Pathologist Joseph H. Choi, M.D.

Riverside County Forensic Pathologist Joseph H. Choi, M.D., conducted

the autopsies of Gary and Roscoe. Dr. Choi testified that neither victim’s body

exhibited defensive wounds. Gary’s neck exhibited five nonfatal superficial cuts

and a single stab wound that penetrated nearly two inches. Dr. Choi opined that

the cause of death was blood loss due to a partially severed jugular vein, which in

turn caused cardiovascular failure. Roscoe’s neck exhibited a deep slash wound

that had fully severed his jugular vein and larynx. Dr. Choi opined that the cause

of death was blood loss causing cardiovascular failure. Dr. Choi further opined

that the duct tape was applied to each victim’s mouth before he was fatally slashed

or stabbed.

6

g. Homicide Investigator Phil Ricciardi

Riverside County Sheriff’s Homicide Investigator Phil Ricciardi traveled to

the Riverside Community Hospital the day after the murders to interview Conya

L. Investigator Ricciardi first presented Conya L. with a picture of Walker, whom

Conya L. had previously identified to the police by way of his moniker. Conya L.

began crying and said “he was the one that did this to her.”

Investigator Ricciardi then read Conya L. a photographic lineup admonition

and presented her with a lineup containing a picture of defendant. Conya L.

pointed to defendant’s picture and said “he was the one that was cutting on her

throat.” At trial, Conya L. provided an in-court identification of defendant,

stating: “I’m a hundred percent positive . . . . There is no doubt in my mind . . . .

It was Rob. We were in the bathroom with the light on.”

In August 1995, Conya L. was visited by Riverside County Sheriff’s

Detective Gary Thompson. Detective Thompson presented Conya L. with a

photographic lineup for the purposes of identifying the third perpetrator. Conya L.

identified a man named Shawn Ford, but it was later discovered that Shawn Ford

had been incarcerated on July 15, 1995, and could not have been the third

perpetrator.

h. Detective Martin Wildeman

Las Vegas homicide detective Martin Wildeman testified that after the

murders, the Las Vegas Metropolitan Police Department began conducting

surveillance at a motel where defendant was suspected to be staying. On July 26,

1995, defendant was seen leaving his motel room wearing a wig and hat. After

defendant returned to his room, law enforcement officers surrounded the motel

and took him into custody. Upon being arrested, defendant spontaneously

declared: “I guess I’m fucked because I’m going to jail behind two murders.”

Defendant refused to provide his name but said to another officer: “I’m hiding out

7

because they’re looking to pin a homicide on me.” A loaded gun was found in the

nightstand of the hotel room. At trial, Conya L. testified that she was “positive”

the gun was the same gun that Walker had pointed at her during the attack.

2. Defense Case

The defense called several witnesses to the stand. First, Sonya Jimmons

testified that she was working as a social worker at the Riverside Community

Hospital when Conya L. was admitted in July 1995. Jimmons testified that Conya

L. reported to her that she had been sodomized during her attacks and that her co-

victims had each been shot in the head by their attackers. Jimmons also stated that

Conya L. had a visitor when Jimmons was present and that Conya L. was laughing

and joking. She further testified that Conya L. had requested a pregnancy test.

Second, the defense called Riverside County Sheriff’s Deputy Don Plata.

Deputy Plata testified that he had participated in the investigation of the murder

scene on July 15 and 16, 1995. He spoke with neighbor Michelle Contreras, who

informed him that she had seen four cars leaving Gary’s house.

Third, the defense recalled Conya L. and established that she had been

convicted of misdemeanor welfare fraud in 1991. Conya L. subsequently lied

about that conviction on two employment applications submitted in 1992 and

1996. Conya L. signed the 1992 application under penalty of perjury. In 1994,

Conya L. fraudulently used a Medi-Cal card.

The defense also attempted to impeach the credibility of Conya L. and

Scott through cross-examination. With respect to Conya L., for example, the

defense noted that two days after the murders Conya L. had said in a taped

interview that only two men had exited the car and approached the house, while at

trial she claimed there were three men. Conya L. had also said in a taped

interview three weeks after the murders that defendant was five feet seven inches

8

tall and weighed 170 pounds. Defendant was almost six feet tall and weighed 275

pounds at the time of the murders.

With respect to Scott, the defense suggested that Scott had attempted to

obtain a reduction of his prison sentence in exchange for testifying against

defendant. In a letter dated June 5, 2002, for example, Scott had written: “I was

willing to assist you [prosecutors] in the past, and I was under the impression your

office back then was going to assist me with the US Attorney and judge in the

[Lake Forest robbery] case.”

B. Penalty Phase

1. Evidence in Aggravation

The parties stipulated that defendant had been convicted of three prior

felonies. The first conviction was for possession of cocaine in 1986, and the

others were for possession of a firearm by a convicted felon in 1992.

Roscoe’s brother, George Frank, testified that Roscoe was 55 years old

when he was murdered. Frank testified that Roscoe was caring, funny, morally

decent, and well-liked. Frank said that the family missed Roscoe terribly and that

Frank’s grandchildren were aware that Roscoe had been tortured and murdered.

On cross-examination, Frank acknowledged that Roscoe had struggled with drug

addiction and had many criminal convictions for narcotics and theft. Roscoe’s

sister, Erma Foster, testified that Roscoe had been a good brother and friend, and

“was never mean to anybody.”

2. Defense Mitigation Case

Abel Zaragoza testified that he had worked as a correctional group

supervising counselor at the Riverside County Sherriff’s Department in 1998.

Zaragoza testified that defendant had voluntarily joined and participated in an

anger management program while in prison. Daniel Johnson, a teacher who

offered general education and other courses to inmates on an independent study

9

basis, testified that defendant had earned his GED and a certificate for anger

management class completion.

Defendant’s 17-year-old daughter, Fantasia Williams, testified that she

wanted her father’s life to be spared. Defendant’s close friend, Victoria Windom,

testified that defendant had been like a son to her and had acted like a big brother

to Windom’s children. She said that defendant had always been respectful to her

and had influenced her children to stay in school. Donna Josey similarly testified

that she had known defendant since he was 13 years old and that he had been like

a son to her and had made friends with everyone. Defendant had been unable to

establish a bond with his father, however, because his father used marijuana and

crack cocaine. Josey further testified that defendant had worked at Burger King

while he was young and had been a good worker. Pearl Lee testified that she had

known defendant since he was young from the “projects” and that defendant had

been like a big brother to Lee’s daughters and had encouraged them to stay in

school.

II. DISCUSSION

A. Speedy Trial Claim

1. Procedural Background

Defendant argues that the nearly seven-year delay between his arrest and

the start of his trial violated his right to a speedy trial as guaranteed by the Sixth

Amendment to the United States Constitution. Addressing this claim requires a

somewhat lengthy recitation of the pretrial proceedings in this case.

Defendant was arrested on July 26, 1995, and arraigned on August 11,

1995, along with codefendant Ronald Walker. Defendant was represented at the

arraignment by Riverside County Deputy Public Defender Forest Wright. After

both defendants entered pleas of not guilty, the preliminary hearing was set for

September 7, 1995, before Judge Myers.

10

Following several requests for continuances by both defense counsel and

for which both defendants agreed to waive time, a new preliminary hearing date

was set for November 15, 1995. On November 9, 1995, Walker’s counsel sought

a 20-day continuance because he was in another trial. Wright, however, opposed

the continuance, explaining that his client “preferred to have the prelim as set.”

Finding good cause, the trial court continued the matter until December 1, 1995.

On November 29, 1995, Walker’s counsel requested another continuance

because of a scheduling conflict. Wright withdrew his opposition to the

continuance, stating that he had been ill and had been unable to meet with

defendant. Defendant agreed to waive time. Prosecutor John Ruiz objected,

stating that he was ready to proceed immediately. The trial court overruled the

prosecution’s objection, accepted defendants’ time waivers, and continued the

preliminary hearing until December 22, 1995.

During a status conference on December 14, 1995, Walker’s counsel

requested another continuance. Wright opposed the continuance on behalf of his

client. The prosecutor also objected to any further continuances. The trial court

denied the continuance request and pushed the preliminary hearing date up one

day to December 21, 1995.

On December 21, 1995, Walker’s attorney requested another continuance to

listen to tapes that had just been provided by the prosecution. Defendant initially

refused to waive time, stating: “I don’t want to waive no time. I want to come on

and do this.” He explained: “[T]his case is my life. And I have been in jail five

months. And it seems like nothing new has come up in five months.” The trial

court advised defendant to reconsider: “You can demand your right to go to

preliminary hearing. That’s fine with the Court. I’m just saying, also realize that

your attorneys have indicated they need to review some of this additional

information. If that’s fine with you and you don’t care, . . . because you have

11

knowingly indicated you want to go forth whether your attorneys are prepared or

not . . . it is going to preliminary hearing today.” Defendant then agreed to waive

time. The preliminary hearing was held on January 4, 1996, and both defendants

were held to answer. Arraignment was set for January 17, 1996.

On January 17, 1996, defendant requested a Marsden hearing to express his

dissatisfaction with assigned counsel. (See People v. Marsden (1970) 2 Cal.3d

118, 124 [holding that “a judge who denies a motion for substitution of attorneys

solely on the basis of his courtroom observations, despite a defendant’s offer to

relate specific instances of misconduct, abuses the exercise of his discretion to

determine the competency of the attorney”].) Defendant explained that he was

“not trying to be a problem” but that he felt his case was “getting nowhere.” He

explained: “My attorney had my case for six months, and it’s nothing — it’s like

we ain’t took one step.” He requested that he be appointed “an attorney that [was]

not so busy.” Wright agreed, saying: “He’s right. I am too busy. I would like to

get rid of a few cases.” Nonetheless, he assured the trial court he would be able to

provide a competent defense. The trial court denied defendant’s Marsden motion

and set the arraignment for the next day.

On January 18, 1996, both defendants were arraigned on the information,

and the district attorney gave notice that the death penalty would be sought.

Counsel for both defendants sought to continue the trial date beyond 60 days.

Walker agreed to waive time, but defendant refused. Walker’s counsel then

moved to sever the cases, stating: “We cannot be ready within 60 days, and if Mr.

Williams forces us to be going to trial within 60 days, I think my client would be

severely prejudiced . . . .” The severance motion was continued, and the

continuance motion was denied. The trial was set for March 11, 1996.

On February 2, 1996, Walker’s counsel filed a motion to sever his case

from defendant’s because he needed more time to prepare for trial and because

12

defendant was refusing to waive time. At the next hearing on February 23, 1996,

Wright joined in the motion to sever. The motion was denied. The trial court

denied defendant’s second Marsden motion on that same date.

On March 1, 1996, Wright requested a continuance of the trial date over

defendant’s objection. The court asked the defendant: “I take it you want to

continue to object to a trial date beyond that March 11 date; is that correct?”

Defendant replied: “Yes.” Despite defendant’s objection, the court found good

cause to continue the trial another 60 days to May 6, 1996. Shortly thereafter, the

case was reassigned to Judge McConaghy.

On May 3, 1996, counsel for both defendants moved to continue the trial

date. Wright indicated he would be unprepared to proceed with the trial as

scheduled. The prosecutor announced that the prosecution was ready for trial.

Defendant again expressed frustration with the lack of progress in his case and

said he had not spoken with his attorney a single time since the last hearing. The

trial court then held another Marsden hearing, at which point Wright

acknowledged that his being “in court every day, all day” was impeding his ability

to work on motions. He indicated, however, that he was proceeding “as diligently

as [he could] at this point, given the staff level that [he had] among qualified

persons.” The trial court denied defendant’s Marsden motion and continued the

trial to October 7, 1996. The trial court explained: “And I do this, that is, grant

the 1050 motion [for a continuance] reluctantly because I know [defendant] wants

a speedy trial. And, as I previously said, that the Court would like to get this

trial . . . starting Monday morning. I would be more than happy to do it, but we do

have conflicting constitutional issues involved . . . . [¶] And as I previously stated,

the constitutional right to have a competent attorney, in this Court’s opinion, far

outweighs the constitutional right to a speedy trial, which does not mean that we

totally ignore the right to a speedy trial.”

13

On August 30, 1996, the trial court considered defendant’s fourth Marsden

motion. Defendant again voiced his concern over his attorney’s lack of progress

in preparing for trial: “I would like to see if it’s possible to relieve my counsel and

represent myself in this case, because I don’t feel that I’m going to get a fair trial

. . . . [E]verything that [defense counsel] stipulated that he needed the extra 60

days for [at the last hearing], . . . still none of them was completed.” He then

clarified: “If I can have a new lawyer appointed, then I know there’s no way in

the world I would try to fight a case like this myself. But if I cannot have a new

lawyer appointed, that is my desire to represent myself.” Wright responded that

defendant had been “a little bit stingy with his information at times,” and that “it’s

not the case that nothing’s been done, because a lot has been done in this matter.”

He added that the investigation was ongoing, but noted that defendant’s “life has

been very different from a lot of persons’ background, and that’s created problems

in finding relatives and finding a lot of things that are necessary.” During further

closed hearings held on September 4, 1996, and September 11, 1996, defendant

withdrew his request to represent himself, and the trial court indicated that it “fully

intend[ed] to start this trial on October 7th.”

At a separate hearing on September 4, 1996, the prosecutor announced he

was ready for trial but “indicate[d] for the record that [he had] received no reports

from either of the defendants relating to reciprocal discovery.” On September 11,

1996, Wright said he did not anticipate being prepared for the trial and requested

second counsel or “Keenan counsel.” (See Keenan v. Superior Court (1982) 31

Cal.3d 424, 430 [trial court has discretion under statutes governing appointment of

counsel to appoint a second defense attorney to assist in defense of a capital case];

§ 987, subd. (d).) At the end of the hearing, the trial court asked defendant if he

would be willing to “waive [his] right to a speedy trial until October 7th, plus 60

14

days thereafter . . . ?” Defendant agreed. On September 20, 1996, the trial court

denied Wright’s request for Keenan counsel.

On September 23, 1996, defendant filed a petition for writ of habeas corpus

in the Riverside County Superior Court asserting ineffective assistance of counsel.

The petition was denied.

On September 27, 1996, defense counsel for both defendants moved to

continue the trial until January 27, 1997. In a written declaration, Wright said he

had “not completed investigation of the ‘guilt/innocence phase’ of the case.” He

explained that his “on-going duties to represent other clients . . . necessitate[d]

[his] diligent attention to nine felony cases . . . . set for jury trial before the end of

November, 1996, and also to one other death penalty case.” During the hearing,

Wright said that he believed that a second attorney should be assigned to the case

and that he would be “in much better shape” if his office could make that

accommodation. Asked if he would be willing to waive time, defendant

responded: “I’ll go ahead and waive time. It won’t make any difference, but I’ll

go ahead and waive time.” He requested the trial court’s assurance, however, that

the new trial date would be fixed and firm: “I’d just like to know that after the

continuance, the January 27, ten days after that, after that is you going to continue

this again, or is this it?” The trial court responded that its “impression of what

we’re doing is that we’re picking a firm trial date with a time waiver until that

date, plus ten court days thereafter, with one little exception. If there’s some

reason why either of the defense attorneys need a . . . short continuance after that,

to provide all the rights you two fellows have a right to.”

On November 15, 1996, the trial court instructed Wright to provide the

prosecution with a list of all unresolved discovery issues by December 13, 1996.

After receiving the list, the prosecution indicated that it intended to contest several

of defendant’s discovery requests. The trial court scheduled a hearing on the

15

contemplated discovery motions for January 3, 1997. This date was later

continued to January 15, 1997.

On January 15, 1997, defendant was represented by Wright’s associate,

Deputy Public Defender Mara Feiger, who had agreed to serve as cocounsel.

Feiger, along with Walker’s attorney, requested a continuance of the January 27,

1997 trial date. The trial court granted the request, and trial was continued to

April 28, 1997. Feiger indicated that she expected the new trial date to be firm.

Asked to waive time, defendant said he did not believe it would assist him to

refuse to waive time because the matter would be continued over his objection:

“[T]he way it sounds, it don’t really make a difference if I agree or not. It seems

like everybody else agrees to it. I mean, me saying no ain’t helping me other

times. I don’t see how it’s going to help me now. . . . [¶] I mean, it don’t help me

none to sit here and say, no, I don’t waive my time, because the thing’s going to be

continued.” The trial court accepted defendant’s comments as a valid waiver and

continued the trial to April 28, 1997.

The trial court held various hearings on discovery-related matters in

February and March of 1997. On March 7, 1997, the prosecutor requested that the

court redact Conya L.’s address and phone number from certain documents before

they were turned over to the defense. The trial court ordered the parties to brief

the issue. On March 21, 1997, Feiger indicated that she anticipated requesting a

continuance because she wanted to bring a motion to compel numerous discovery

items.

On March 24, 1997, the trial court held a fifth Marsden motion hearing. At

the beginning of the hearing, defendant stated that he “[didn’t] know if this was

the proper way to address what I wanted to address,” and explained that he simply

wanted to speak to the court. He first attempted to apologize for his behavior, but

the trial court responded: “I’m not worried about your behavior.” Defendant then

16

stated: “I just wanted to say this. You have been basically familiar with my

attempts over and over trying to relieve Mr. Wright of counsel, and my not

waiving time, trying to hurry up and rush the trial. The reason that I was doing that

was because I felt that this was just going to get against — pushed to trial. And

the outcome is already set. . . . Now, since Ms. Feiger has been on my case, a lot

of the things that we got continuances for a year ago just now started getting done;

a lot of the investigation, a lot of — just basically preparing for my defense just

started getting done since she’s been my attorney. . . . Now, I see the work that my

attorney is doing, and I also know, just like I knew then, that I am facing death in

this case. So I just want, if possible, to give her whatever time she can get, or

what she would need.” When asked if he wanted to relieve his two lawyers,

defendant responded: “I don’t want to fire Ms. Feiger. If I can fire Mr. Wright, I

would love to. But I failed on, I think, four different times so I kind of gave up on

that.”

On March 31, 1997, Feiger filed a motion to compel the prosecution to

produce Conya L.’s address and requested a continuance. Also on that date, the

prosecution indicated that it was in possession of taped jailhouse conversations

between Walker and his girlfriend to which defendants were entitled. Defendant

waived time, and the trial court continued the trial to July 28, 1997.

On April 29, 1997, the prosecution indicated that it had turned over to the

defense the recorded conversation between Walker and his girlfriend, but that it

had not yet provided a transcript of the girlfriend’s statement to the police. Also

on that date, the parties revisited the question of whether the defense was entitled

to disclosure of Conya L.’s address and telephone number. After several more

hearings on this question, the trial court ruled on June 6, 1997, that it would not

order the requested information disclosed to the defense. Also on June 6, 1997,

counsel for both defendants moved to continue the trial in light of the ongoing

17

discovery disputes. Defendant waived time, and the trial date was continued to

October 10, 1997.

On August 7, 1997, the parties continued litigating various discovery

issues, including defense counsel’s request for the address of another witness. The

trial court ordered the prosecution to produce the address. The prosecution was

granted a two-week continuance to consider taking a writ to challenge the ruling.

When no writ was filed, the trial court granted the prosecution an additional 15

days to respond to the court-ordered disclosure.

On September 5, 1997, Walker’s counsel declared a conflict and sought to

be relieved. The motion was granted two weeks later, and an attorney from the

criminal defense panel (CDP) was appointed to represent Walker. The trial court

heard multiple defense discovery motions on September 29, 1997.

On October 7, 1997, Feiger said she probably would not be prepared to go

to trial for at least a year because she believed that the prosecution had failed to

adhere to its discovery obligations. Walker’s new counsel similarly indicated that

he would not be prepared for trial for at least six months and “probably closer to

. . . 12 than six.” The prosecution objected to any continuance and claimed that

the defense “was engaged in a fishing expedition.” The prosecution also argued

that the trial court had “an obligation to appoint counsel, where counsel on the

case can proceed in a fashion that would not disrupt the orderly administration of

justice,” and that it was not appropriate for the court to grant a year-long

continuance “just so CDP can keep it in-house.” The trial court acknowledged

that “discovery ha[d] not been smooth in this case in either direction” but said it

was not “pointing a finger” at either the defense or the prosecution. The trial court

ultimately granted the motion to continue and set a “firm” trial date for August 3,

1998. Defendant agreed to waive time.

18

On December 5, 1997, the prosecution requested an additional two weeks

to respond to a defense motion to compel disclosure of witness information. The

request was granted.

On January 23, 1998, Feiger said the prosecution still had not turned over

the discovery items the trial court had ordered produced on September 29, 1997.

The prosecution addressed each item in turn and agreed to provide the missing

items. The parties dispute whether or not the relevant materials had been provided

in a timely fashion.

On April 3, 1998, the public defender’s office declared a conflict with

defendant. A representative of the public defender’s office, Floyd Zagorsky, said

that while he was not at liberty to discuss the nature of the conflict, it was “a result

. . . of information that we received recently from the prosecution . . . we felt

should have been provided much earlier in the case.” In response, the trial court

relieved Wright and Feiger. Because of the conflict, defendant’s case was referred

to the criminal defense panel, and CDP attorney Jay Grossman sought and

received a 31-day continuance to arrange for another lawyer to represent

defendant. A month later, on May 4, 1998, Grossman was granted a 27-day

continuance as he continued to arrange for defendant’s representation.

On June 2, 1998, CDP attorney Grover Porter was appointed to represent

defendant. Porter requested that the trial be scheduled for February 23, 1999, so

that he could have adequate time to prepare. Defendant agreed to waive time.

On September 18, 1998, Porter asked to withdraw for health reasons. The

trial court granted the motion. On September 25, 1998, CDP attorney Douglas

Myers was appointed as counsel. On October 1, 1998, Myers appeared and

indicated that CDP attorney John Aquilina would be his cocounsel; the hearing

was continued until October 20, 1998 to determine how long defense counsel

would need to prepare for trial. On October 20, 1998, Myers was relieved, and

19

Aquilina said he needed an additional two weeks to evaluate the file in order to

determine when he could be ready for trial. On November 3, 1998, stating that he

had recently received “eight boxes of materials,” Aquilina requested that the trial

date be pushed back seven months. The trial court found good cause to continue

the trial to June 14, 1999.

On January 22, 1999, Aquilina indicated that another death penalty case

was “[o]ccupying a great deal of [his] time” but that he still anticipated being

ready for trial on June 14, 1999.

On April 23, 1999, Aquilina requested that the trial date be continued in

order for him to conduct additional investigation and because of an issue regarding

his investigator that he could only discuss in camera. The prosecutor opposed the

request, highlighting the age of the case and pointing out that defendant’s

investigator had been involved with the case “for years.” The trial court agreed

that defendant’s case was then “the oldest one in the courthouse” but agreed to

hold an in camera hearing to discuss Aquilina’s concerns.

During the in camera hearing, Aquilina informed the trial court that Grover

Porter had retained an investigator in June 1998 but that neither Porter nor

Aquilina had asked him to “conduct any investigation whatsoever.” About three

weeks prior to the in camera hearing, the investigator had informed Aquilina that

he needed to withdraw from the case to care for a terminally ill family member.

As to retaining a new investigator for the guilt case, Aquilina believed that one

would be available in June. A paralegal who had worked for Wright on the

penalty phase would also be available after her final exams were completed in

June. Summing up the situation, Aquilina said “no investigation [to] my

knowledge has been conducted since the public defender’s office was relieved in

April of ’98.”

20

At the hearing, Aquilina further commented: “I guess what distresses me

the most is that the public defender was appointed to Mr. Williams’ matter, it

appears, on August the 11th of 1995, was relieved in April of 1998, after declaring

a conflict of interest. And . . . it would appear all an attorney would have to do is

catch up to what has occurred. Quite candidly, I don’t see that even five percent

of the investigation necessary in the guilt phase of this case has been conducted.”

Aquilina noted that various witnesses had not been interviewed and that “trying to

locate witnesses, contact witnesses, interview witnesses” going forward would

“obviously not [be] as easy as it would have been back then.” Aquilina

apologized to the court that during his own representation of defendant since

October 1998, he had not moved the investigation forward because his

engagement on two other death penalty matters had prevented him from working

on defendant’s case. Aquilina said he didn’t think that “mentally, emotionally,

psychologically” he could handle “three capital cases in one year in a twelve-

month period.” Toward the end of the hearing, the court said to defendant: “I’ve

held a few Marsden motions with you and a few motions that weren’t truly

Marsden motions, but when we got to talk about what’s going on — and I think

it’s safe to say it’s been your concern all along that not enough has been done in

your case.”

On May 13, 1999, Aquilina requested that the trial date be continued. The

prosecutor opposed the request. Walker also opposed the continuance request.

Defendant waived time, and the trial court continued the trial until January 10,

2000. Four days later, on May 17, 1999, the trial court held a sixth Marsden

hearing. Defendant indicated that he had been unable to communicate with

Aquilina or his staff, and voiced his concern about Aquilina’s apparent failure to

make any progress on the case. Defendant also expressed his fear of going to trial

“with an attorney that only knows bits and pieces of the case.” Aquilina

21

acknowledged that defendant was “partly correct” in that he “[had] not been able

to give [defendant’s] case or [defendant] the attention he needs or deserves.”

Aquilina represented, however, that he would be prepared to start the trial in

January 2000. Defendant’s Marsden motion was denied, and on June 25, 1999,

CDP attorney Regina Filippone joined Aquilina as cocounsel for defendant.

On August 30, 1999, the trial court held a seventh Marsden hearing.

During the hearing, the presiding judge left the courtroom, and Aquilina disclosed

to a different judge that one of his other clients might have information that could

impeach Conya L.’s testimony in defendant’s case. In light of this potential

conflict of interest, defendant’s Marsden motion was granted. On September 2,

1999, CDP attorney David Gunn was appointed to represent defendant.

On October 1, 1999, Gunn said he needed several weeks to determine when

he could be ready for trial and also said he was in the process of securing

cocounsel. On October 22, 1999, Gunn indicated that the January 10, 2000 trial

date was unrealistic and that he was still in the process of securing cocounsel.

On November 22, 1999, Gunn explained to the trial court that he was still

attempting to secure cocounsel and would not be prepared for trial in January.

Noting Walker’s objection to any further continuances and “recognizing that this

is going to take two juries,” the prosecutor said he was “prepared to make a

motion to sever the two cases.” On December 17, 1999, the trial court granted the

severance motion, stating: “[I]n fact, I wish we would of thought of this at least a

couple of years ago. But we didn’t. Or at least we didn’t talk about it. It seems

like it might be the only way we’re ever going to get this case to trial is to sever it

and bite the bullet and actually do the case twice.” Also on that day, Gunn

announced that CDP attorney Bruce Cormicle would be serving as cocounsel.

On December 21, 1999, the trial court heard defendant’s eighth Marsden

motion. Defendant indicated that he wanted to bring to the trial court’s attention

22

the fact that he was having difficulty communicating with Gunn “before we get

too far down the line.” He also stated: “I’m tired. I want to go to trial. I’m tired

of sitting here. As you recall, two years ago, three years ago, I didn’t want to

waive no time. I wanted to go to trial then. I look at — like, you understand, my

life is on the line. If I was going to lose my life, let me lose it now and not sit in

here for four, five years, which looks like I ended up doing anyway. In the last

two years, nothing’s been done.” The trial court denied the motion.

Also on December 21, 1999, following the Marsden hearing, Gunn

informed the trial court that he had “about eight murder cases still set pending for

next year” and that he would therefore request a trial date of October 2, 2000. The

trial court granted the request.

On January 14, 2000, CDP attorney Cormicle officially appeared as

cocounsel for defendant. During an April 7, 2000 status conference, the trial court

inquired if the parties would be prepared to go forward with the October 2, 2000

trial date. Gunn said that the defense was “on track” but that he had “lost [his]

investigator due to family problems” and that he was just in the process of getting

new investigators “on board.” On May 12, 2000, Gunn indicated that his effort to

retain an investigator had been unsuccessful and that the problem would likely

affect his ability to be prepared for the upcoming trial date.

On June 9, 2000, the trial court held a ninth Marsden hearing. The trial

court concluded the hearing when defendant acknowledged that he did not want to

“fire[]” his attorney and simply wanted to apprise the court of the status of his

case. The same day, Gunn informed the trial court that he had just gotten funding

approved for an investigator and that before the funds were approved, he had

experienced “a period of time of about two months where we kind of lost our

ability to have investigative work done.”

23

On July 14, 2000, the trial court heard defendant’s tenth Marsden motion.

Defendant voiced his concerns as follows: “I would like counsel dismissed on my

case, due to the fact that from day one . . . to the present date, me and counsel does

not have no opportunity to sit down, and he actually know anything in this case.

Ask him about the case. Time and time again he told me that he would get caught

up with the case. That’s all been a lie. We referred to the Court four months ago

we didn’t have an investigator. We got an investigator three months ago. To the

present date, no investigator has been to talk or — the case been at a stand still for

10 months since Dave Gunn been on the case.” In response, Gunn acknowledged

that because of his problems finding an investigator and obtaining the requisite

funding, he had lost “three to four months, in terms of actual preparation of the

investigation.” He also acknowledged that the investigator had not met with

defendant since funding had been approved because of “vacations” and that the

investigator had been “working on a death penalty case in Rancho Cucamonga that

was just concluded.”

After hearing both sides, the trial court issued the following ruling: “I’m

going to deny the motion. . . . The bottom line, as I see it . . . is to have adequate

representation and be prepared for trial is a must. Whether or not that gets done

on a full-time basis working from sun up to sundown for a short period of time, or

anything in between that, and working an hour all day for 10 years I don’t think is

what’s important. [¶] What’s important is, is there adequate representation at the

time we get started at trial? And so I can’t even pretend that I know enough or

that I have the power or authority to tell Mr. Gunn you must work ex number of

hours this week on this case, because he has to manage his calendar. He’s got

other clients he is also working for. . . . [¶] I understand from your stand point, Mr.

Williams, that you’re the person that’s on the line here. You have been — this is

an old case in many respects. This case should have been to trial a good long time

24

ago. No one is going to quibble about that. If we would have bifurcated a good

long time ago, perhaps we would have had part of it to trial already and had been

done. Didn’t do so. That’s neither here nor there. That’s just a fact of life. [¶] I

see no reason why this one won’t get to trial in a timely manner now. And I’m

just — I don’t see any reason to grant the motion.”

On August 11, 2000, defendant moved to represent himself. (See Faretta v.

California (1975) 422 U.S. 806, 819 (Faretta).) On August 16, 2000, the trial

court granted defendant’s Faretta motion, but directed Gunn to remain as “standby

counsel.” At defendant’s request, the trial court continued the trial date to

February 5, 2001.

At a hearing held on October 6, 2000, defendant voiced concerns regarding

Gunn’s role as standby counsel. Defendant further noted that he had filed a

malpractice suit against Gunn and said he did not “know if that would declare a

conflict or not.” Defendant also claimed that his court-appointed investigator

would not take his calls and failed to visit him in jail.

On October 13, 2000, the trial court considered defendant’s motion to

compel disclosure of various discovery items. The trial court indicated that it

would “handle that [motion] like I would any other discovery motion” and “order

that . . . the defendant and the district attorney [] get together and narrow the list

down to items that one side still thinks they have a right to.” The trial court also

informed defendant that it had no role to play in defendant’s request for funds.

On November 3, 2000, attorney John Davis filled in for prosecutor John

Ruiz and requested that the hearing on defendant’s discovery motions be

postponed until Ruiz’s return. Davis noted that Ruiz “would . . . be the person to

argue on [defendant’s] current motion, which appears to be a discovery motion for

six or eight . . . audio tapes and 911 logs . . . that normally we don’t object to, but

we probably have not provided to him previously. And they probably should have

25

been.” The trial court continued the hearing until November 9, 2000. On

November 9, 2000, Ruiz was “still ill,” and the trial court again postponed the

hearing.

On November 22, 2000, Davis informed the trial court that Ruiz would

likely “be ill for probably another three or four weeks.” Defendant stated for the

record: “[I]t seems like it’s getting impossible to get investigation and discovery

issues. And I just hope it don’t be difficult when that time come to go to the next

phase, as far as you understand having to fight for a continuance and not look like

it’s my reason why I need the continuance.” The hearing was continued until

January 4, 2001.

On January 4, 2001, Ruiz was still ill. The trial court expressed its concern

with Ruiz’s continued absence and suggested that Davis be prepared to take over

the case: “I’m a little bit concerned that we’re — Ruiz can try this case easily

enough because he tried [Walker’s] companion case earlier. . . . But we don’t

know what his health is. . . . I don’t want Davis to think I’m trying to run the

DA’s office, but Davis can try this case. . . . Davis is a good enough lawyer. He’s

got enough time that he can be ready. . . . [Ruiz is] the best candidate to try it

because he’s tried the other half of it, but I don’t want to get into a position where

[defendant] is caught between a rock and a hard spot because the DA’s office is

not ready.” The hearing was continued until January 12, 2001.

Ruiz returned for a hearing on January 12, 2001. During the hearing,

defendant claimed that the prosecutor had failed to provide him with discovery;

the prosecutor, in turn, responded that some of the requested items had been

turned over to the defense long before. The trial court ordered the parties back on

January 26, 2001, to consider a new trial date. The trial court also denied

defendant’s request that the trial court “appoint a second counsel.”

26

On January 26, 2001, defendant filed a motion to disqualify the trial judge

pursuant to Code of Civil Procedure section 170.1. On the same day, the

prosecutor informed the court that his office had made copies of several of the

tapes defendant had requested but that “[defendant] doesn’t get these until they are

paid for.” Defendant responded that he had no investigator and that he didn’t

know if funding had been approved. On January 30, 2001, the trial court denied

defendant’s section 170.1 motion.

On January 31, 2001, defendant stated that he needed a six-month

continuance, explaining that he was “starting from scratch” and needed time to

prepare. The prosecutor objected to further delay, represented the prosecution was

ready to proceed to trial immediately, and complained that defendant was utilizing

his in propria persona status to cause delay. The trial court granted defendant a

two-month continuance until April 2, 2001.

On February 23, 2001, the prosecutor told the trial court that he had given

his investigator’s phone number to defendant. Defendant responded that the

investigator never picked up the phone to accept his collect calls. Also on

February 23, 2001, defendant filed another motion to disqualify the trial judge

pursuant to Code of Civil Procedure section 170.1. The motion was denied.

On March 7, 2001, defendant filed a motion to disqualify the prosecutor

pursuant to Penal Code section 1424, another motion to disqualify the trial judge

pursuant to Code of Civil Procedure section 170.1, and a motion for a change of

venue pursuant to Penal Code section 1033. The motions were all denied. On

March 16, 2001, defendant waived time, and his motion for a continuance was

granted over the prosecutor’s objection. The trial was continued until June 4,

2001.

On March 20, 2001, defendant claimed that tests had been performed on his

clothing but that the results had never been produced; the trial court put the matter

27

over at the prosecutor’s request. On April 5, 2001, Ruiz turned over the clothing

and test results, which revealed that no blood had been found on the clothing.

Also on that date, defendant indicated that some of the tapes the prosecution had

provided contained no audio; Ruiz responded by promising to have copies made

and to turn them over to defendant once they were paid for. The trial court also

granted defendant’s request that his wife, Sharon Williams, be appointed as his

unpaid legal runner.

On April 17, 2001, the prosecutor told the court that defendant had been

provided additional copies of discovery that he did not believe to be in his files,

and said defendant had refused to reimburse the district attorney’s office for the

cost of photocopying the requested documents.

On May 1, 2001, standby counsel Gunn indicated that standby cocounsel

Cormicle would be unavailable in June and therefore requested that the trial date

be pushed back into July 2001. The court stated that the reason it “appointed

standby counsel [was] because [it believed] there [was] a better than even chance

[standby counsel would] end up trying the case” and that it would therefore be

prudent to allow standby counsel adequate time to prepare in case they were called

upon to take over the defense. Defendant said he did not oppose the request and

waived time. Over the prosecutor’s objection, the trial court continued the trial

until July 30, 2001. On May 18, 2001, the trial court denied defendant’s motion to

remove Gunn as standby counsel.

During a June 15, 2001, trial readiness conference, the trial court noted that

it had received a letter from defendant’s court-appointed investigator notifying the

court that the investigator was “no longer” on the case and asking for his

appointment to be terminated. In the letter, the investigator stated: “I find it

impossible to work with Mr. Williams.” The trial court granted the investigator’s

request and relieved him from the case.

28

On June 28, 2001, the trial court heard defendant’s motion to remove Gunn

as standby counsel. Citing the civil litigation he had filed against Gunn, defendant

argued that Gunn would not do his “best” because a guilty verdict would provide

Gunn with a defense to defendant’s pending civil suit. Gunn indicated that he was

“concerned enough” about the potential conflict that he had “called the State Bar,”

but stated that he still believed he could serve as standby counsel. The court

denied the motion.

Also on June 28, 2001, the prosecutor argued that defendant was engaged

in delay tactics. The prosecutor stated: “The court knows how long I have sat

back and waited. But . . . the letter by Mr. Evans [defendant’s investigator] — you

know, thank God a non lawyer addressed this court because this non lawyer told

you in no uncertain terms what the problem is. And that’s symbolic of what the

problem has continued to be. As he states in his letter, he asked to be relieved

from his position, appointed as his investigator, quote, ‘I find it impossible to work

with Mr. Williams.’ This letter lays out how Mr. Williams has done everything to

delay the proceedings in his dealings with the investigator. He takes a hostile

attitude with his own investigator and refuses to cooperate with him.”

The trial court noted at this point that defendant had chosen and hired this

investigator himself. The prosecutor agreed and added: “The record has shown

that this defendant has tried to fire every lawyer he has ever had.” When

defendant interrupted by saying, “Not Mara Feiger,” the prosecutor said that “the

only reason he did not try to fire Mara Feiger is because he saw in Mara Feiger a

lawyer who was going to tell him to violate Court orders that you just laid down in

the courtroom in that very session. . . . This is only going to delay the proceedings

and stretch it out. So the only attorney he never tried to fire was Ms. Feiger. And

she did him the favor, after representing him for a year and a half, of declaring a

conflict of interest, knowing that that was going to delay the trial another year,

29

playing right into the defendant’s hands. So no wonder he wants to put her up on

an alter [sic]. She did his bidding.

“What do we see here in the letter? We see a non lawyer addressing the

Court letting us know what’s going on with Mr. Williams.

“He tried to fire Forest Wright so many times I can’t count them. Then he

was given Grover Porter. Mr. Porter’s health did not allow him to take the

aggravation that we now see that Mr. Williams dishes out to the people that are

forced unfortunately to deal with him. He fired — or he Marsden’d John

Aquilina. [¶] Your honor has done so many Marsden motions on Mr. Gunn as

counsel, I think it says something. When you look back — this is a conservative

estimate — he’s made 25 Marsden motions. Now, at some point the world says,

‘Is it us or is it him?’ And it’s him.”

The prosecutor then urged the trial court to relieve defendant of his Faretta

status: “Your Honor has the basis today for relieving the defendant of his pro per

status by finding that the defendant has used and manipulated his pro per status to

delay these proceedings. Because if the Court enjoys discretion in anything, it is

to effect the orderly administration of justice in this courtroom.

“Your Honor, Mr. Williams — I want to add to that how long we’ve been

on this case. We arrested Mr. Williams two weeks after the murders on July 15th

of 1995. In two weeks, we’ll celebrate the sixth anniversary of the murders in this

case. And he has done everything he can to stretch it out, to delay it, to avoid this

day, in the hopes that Conya dies, that the other witnesses are unavailable. There

has been evidence of the defendant’s attempts to have Conya killed from years

ago.

“Your Honor, I think the appellate courts are going to say, ‘Mr. Williams,

six years is long enough.’ He is no closer to trial today than he was a year ago.

He doesn’t even have an investigator. No investigator will work with him. How

30

is he going to serve subpoenas? . . . No subpoenas served. I haven’t seen one

witness list from him. I’ve got no discovery from him. [¶] Judge, enough is

enough. Please grant the motion.”

When asked if he wished to be heard, defendant explained that he had had a

dispute with his investigator over funding, and that the reason he liked Mara

Feiger but not his other attorneys was that she was the only attorney who had

made progress on his case. He then stated: “I — at this point, I’m kind of, like,

fed up. Whatever y’all want to do. . . . This is your house. I’m burnt out. [¶] But

the — I will say this here. You give this man the case. The man don’t know

nothing about the case. . . . If I have the case, I’m not asking for no continuance.

I’m not asking for . . . you to put it off. As far as our trial date stands now, I am

ready to go to trial. . . . I know my case. I feel I know my case better than any

other attorney to have my case besides Mara Feiger. I feel the only reason I want

to fight my case — I know I’m in over my head, but the only reason I want to fight

my case, because I don’t want to go to trial with somebody like Mr. Gunn that

don’t have no knowledge of the case, and go through arguments like this. . . . So if

you want to take my pro per status, fine. This is your courtroom. Do what you

want to do. I don’t care. But don’t give it to this man. That’s the whole thing

I’ve been fighting. That is why I filed the motion to remove him as standby

counsel, because when he was counsel he ain’t doing nothing.”

When asked by the trial court if he had retained a new investigator,

defendant stated: “No. I do plan on, yes.” The trial court then made the

following findings: “that Mr. Williams has had — and I do not know the number

of Marsden motions. I can’t even count the number of lawyers that he’s had. And

I agree with him, the only one he liked was Ms. Feiger. And I think it was

probably for the reason, as Mr. Ruiz said, because she was — as a trial attorney,

she was a hand-holder for defendants. And that’s what Mr. Williams has been

31

looking for all along, somebody that will come through here anytime he wants to

be seen. [¶] I find that I agree with Mr. Williams, he’s in over his head. And that

all of these have been delay tactics. And I’m going to remove him from his pro

per status. And Mr. Gunn has become the lead attorney.”

On July 30, 2001, the date set for trial, Gunn represented to the trial court

that the defense required an additional 30-day continuance because he needed

more time to prepare for trial. When asked if he would agree to a continuance,

defendant stated: “I don’t agree to nothing.” Finding that there was a “15-court

day waiver beyond today’s date,” the trial court continued the matter to August 10,

2001. On August 10, 2001, the trial court found good cause to continue the matter

until August 20, 2001.

On August 20, 2001, Gunn declared a conflict because of the pending

lawsuit filed by defendant. Gunn also cited communication problems and

defendant’s failure to cooperate with defense preparations. The trial court said:

“[I]t’s another way of him delaying this trial by suing you. [¶] Next thing, Mr.

Cormicle is going to be sued for malpractice. Where does it end?” But Gunn

informed the court that “Mr. Williams does cooperate with Mr. Cormicle” and

“[w]ill communicate with him, cooperate in his defense,” and that the breakdown

appeared specific to the relationship between defendant and Gunn. The trial court

therefore relieved Gunn and appointed Cormicle as lead counsel. Finding good

cause, and without a time waiver from defendant, the trial court granted

Cormicle’s request to continue the trial date and set a trial readiness conference for

September 20, 2001. On September 20, 2001, Cormicle requested a continuance

because he was having difficulties securing investigative funds on behalf of the

defense. Defendant refused to waive time. Finding good cause for a continuance,

the trial court continued the trial to March 4, 2002.

32

During a January 23, 2002, trial readiness conference, Cormicle requested a

trial continuance because he had yet to receive some federal documents that he

had subpoenaed regarding bank robberies committed by victim Gary Williams.

Defendant waived time, and the trial was continued to April 8, 2002.

A hearing set for March 8, 2002, was postponed for a week at the request of

the prosecutor. On March 15, 2002, the prosecutor requested an additional two-

week continuance to give him “time to finish [another] jury trial.” The trial court

granted the request.

On March 29, 2002, the trial court heard and denied defendant’s eleventh

Marsden motion. The trial court told defendant that “[p]art of the reason this case

is old” is that “[w]hen the case gets ready for trial and gets near the time for trial,

we fire a lawyer or we represent ourselves . . . .” Later that same day, Cormicle

requested a continuance of the trial date. Cormicle said that the FBI had granted

him access to its files four days earlier regarding 15 separate bank robberies

committed by Gary and his associates, and that he needed more time to review

these materials. Defendant waived time, and the trial court continued the matter

until June 10, 2002.

On April 23, 2002, Cormicle represented to the trial court that he was “still

receiving additional reports, significant reports, that should have been turned over

seven years ago but were not.” Specifically, Cormicle indicated that he had only

recently received “a four-page report from the FBI that was in the possession of

the district attorney pertaining to Robert Scott.” According to Cormicle, the report

contained statements that were inconsistent with Scott’s prior statements and

identified witnesses that had not previously been identified. In response, the

prosecutor claimed that “[t]he problem with why that was not turned over earlier is

because of the revolving door of defense attorneys” who failed to “follow

through” with discovery. He also claimed that the new material was

33

“independently obtainable by defense counsel.” Cormicle responded that the

prosecution had an obligation to turn over the material under Brady v. Maryland

(1963) 373 U.S. 83 (Brady) and that “there had been a demand for reports from

my client during the time that he was pro per.”

During an ex parte hearing held on April 25, 2002, Cormicle represented

that he had “basically started from scratch” because “nothing had been done for

the past six years . . . .” He also said he had recently come across a one-page

document titled “Gary and 100 bandits” that “was an outline of . . . 15, 16, or 17

bank robberies that Gary Williams was believed to have orchestrated and

organized.” The defense had only recently received about “700 pages” of

information regarding these prior bank robberies and the associates of Gary

Williams who may have had reason to rob or kill him. Cormicle also clarified that

the four-page document he had referred to two days earlier was a “proffered

statement” from Robert Scott “where he’s presumably looking to cut a deal with

the US Attorney.”

On May 1, 2002, Cormicle requested that trial be continued until August

2002 in order to give him time to explore issues regarding third-party liability and

complete his investigation. At the request of the prosecutor, Conya L. addressed

the trial court and explained that she felt threatened and wanted to “get this out of

the way.” The prosecutor urged the court to reject any further requests for delay

and argued that defendant or his counsel had successfully manipulated the pretrial

process over the past six years. The prosecutor asked the court to consider “the

length to which Mr. Williams will go to thwart your will and break your will, that

this case ever get to trial.” The court responded: “Mr. Ruiz, he’s not going to

break my will,” and “I don’t like lawyers insinuating that any defendant’s going to

control what I do.” When the prosecutor pushed back and suggested that the court

had not sufficiently challenged the reasons given by defense counsel for seeking

34

continuances over the past six years, the trial court said: “You’re wrong. I’m

telling you that you’re wrong so move on to something else.” Noting that the

pretrial history of the case read “like a horror story as far as delays,” the trial court

then continued the trial date to July 1, 2002, over the prosecutor’s objection.

Defendant agreed to waive time.

The trial court heard and denied defendant’s twelfth Marsden motion on

June 7, 2002. Jury selection began on July 1, 2002.

2. Analysis

The Sixth Amendment to the United States Constitution guarantees that

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . .

trial.” “[T]he right to a speedy trial is ‘fundamental’ and is imposed by the Due

Process Clause of the Fourteenth Amendment on the States.” (Barker v. Wingo

(1972) 407 U.S. 514, 515 (Barker), quoting Klopfer v. North Carolina (1967) 386

U.S. 213, 223.) The speedy trial guarantee “is an important safeguard to prevent

undue and oppressive incarceration prior to trial, to minimize anxiety and concern

accompanying public accusation and to limit the possibilities that long delay will

impair the ability of an accused to defend himself.” (United States v. Ewell (1966)

383 U.S. 116, 120.)

In Barker, the high court explained that the Sixth Amendment right to a

speedy trial “is generically different from any of the other rights enshrined in the

Constitution for the protection of the accused” in several important ways. (Barker,

supra, 407 U.S. at p. 519.) First, “there is a societal interest in providing a speedy

trial which exists separate from, and at times in opposition to, the interests of the

accused.” (Ibid.) Lengthy pretrial incarceration “contributes to the overcrowding

and generally deplorable state” of local jails, “ ‘has a destructive effect on human

character,’ ” and imposes significant “cost[s]” on society in the form of

maintenance expenses and lost wages. (Id. at pp. 520–521.) Second, unlike other

35

constitutional rights afforded the accused, deprivation of the right to a speedy trial

“may work to the accused’s advantage,” as “[d]elay is not an uncommon defense

tactic.” (Id. at p. 521.) “Thus, unlike the right to counsel or the right to be free

from compelled self-incrimination, deprivation of the right to speedy trial does not

per se prejudice the accused’s ability to defend himself.” (Ibid.) Third, “the right

to speedy trial is a more vague concept than other procedural rights” in that it is

impossible to “definitively say how long is too long in a system where justice is

supposed to be swift but deliberate.” (Ibid.) Accordingly, “any inquiry into a

speedy trial claim necessitates a functional analysis of the right in the particular

context of the case . . . .” (Id. at p. 522.) Finally, “[t]he amorphous quality of the

right also leads to the unsatisfactorily severe remedy of dismissal of the indictment

when the right has been deprived. . . . Such a remedy is more serious than an

exclusionary rule or a reversal for a new trial, but it is the only possible remedy.”

(Ibid., fn. omitted.)

Because “[t]he speedy-trial right is ‘amorphous,’ ‘slippery,’ and

‘necessarily relative,’ ” the high court in Barker “refused to ‘quantif[y]’ the right

‘into a specified number of days or months’ or to hinge the right on a defendant’s

explicit request for a speedy trial.” (Vermont v. Brillon (2009) 556 U.S. 81, 89–90

(Brillon), quoting Barker, supra, 407 U.S. at p. 522.) Rather, to determine

whether a speedy trial violation has occurred, Barker established a balancing test

consisting of “four separate enquiries: whether delay before trial was

uncommonly long, whether the government or the criminal defendant is more to

blame for that delay, whether, in due course, the defendant asserted his right to a

speedy trial, and whether he suffered prejudice as the delay’s result.” (Doggett v.

United States (1992) 505 U.S. 647, 651 (Doggett).) None of these four factors is

“either a necessary or sufficient condition to the finding of a deprivation of the

right of speedy trial. Rather, they are related factors and must be considered

36

together with such other circumstances as may be relevant. In sum, these factors

have no talismanic qualities; courts must still engage in a difficult and sensitive

balancing process.” (Barker, supra, 407 U.S. at p. 533.) The burden of

demonstrating a speedy trial violation under Barker’s multifactor test lies with the

defendant. (See id. at p. 532.)

Based on the overall balance of factors in the present case, we conclude that

defendant’s speedy trial claim fails. In reaching that conclusion, we address the

four Barker factors in the following order: length of the delay, prejudice,

defendant’s assertion of the speedy trial right, and who is to blame for the delay.

a. Length of the delay

The first Barker factor, the length of the delay, encompasses a “double

enquiry.” (Doggett, supra, 505 U.S. at p. 651.) “Simply to trigger a speedy trial

analysis, an accused must allege that the interval between accusation and trial has

crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay,

[Barker, supra, 407 U.S. at pp. 530–531], since, by definition, he cannot complain

that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his

case with customary promptness. If the accused makes this showing, the court

must then consider, as one factor among several, the extent to which the delay

stretches beyond the bare minimum needed to trigger judicial examination of the

claim. [Citation.] This latter enquiry is significant to the speedy trial analysis

because . . . the presumption that pretrial delay has prejudiced the accused

intensifies over time.” (Id. at pp. 651–652; see id. at p. 652, fn. 1 [“We note that,

as the term is used in this threshold context, ‘presumptive prejudice’ does not

necessarily indicate a statistical probability of prejudice; it simply marks the point

at which courts deem the delay unreasonable enough to trigger the Barker

enquiry.”].)

37

In this case, defendant was arrested on July 26, 1995, and brought to trial

on July 1, 2002. (See United States v. Marion (1971) 404 U.S. 307, 325 [Sixth

Amendment speedy trial right attaches when the defendant is “accused,” i.e., when

he is “arrested, charged, or otherwise subjected to formal restraint prior to

indictment”].) This delay of nearly seven years clearly qualifies as

“ ‘presumptively prejudicial’ ” within the meaning of Barker. (See Doggett,

supra, 505 U.S. at p. 652, fn. 1 [noting that “the lower courts have generally found

postaccusation delay ‘presumptively prejudicial’ at least as it approaches one

year”]; see also United States v. Loud Hawk (1986) 474 U.S. 302, 304 (Loud

Hawk) [90-month delay]; Serna v. Superior Court (1985) 40 Cal.3d 239, 252

[four-and-a-half-year delay].)

In a complex case, delay will weigh less heavily against the state because

the significance of the delay “is necessarily dependent upon the peculiar

circumstances of the case” and because “the delay that can be tolerated for an

ordinary street crime is considerably less than for a serious . . . charge.” (Barker,

supra, 407 U.S. at pp. 530–531.) In the present case, the charges were serious and

complex. Defendant was charged, along with a codefendant, with a double

homicide and attempted murder for which the prosecution sought the death

penalty. This case certainly differs from the routine prosecution of an ordinary

street crime. However, in denying defendant’s request for Keenan counsel, the

trial court opined that the case was “not necessarily a more complicated case than

any other [capital] case.” After taking into account “the seriousness of the

offenses,” the “nature of the offenses themselves,” and “the number of motions

that allegedly need[ed] to be filed,” the trial court concluded that second counsel

was unnecessary to assist in what it believed to be a relatively straightforward

death penalty case. Once trial finally began, it concluded within seven weeks.

Moreover, even considering the gravity of the charges, a delay of seven years is

38

“extraordinary.” (Barker, supra, 407 U.S. at p. 533 [“It is clear that the length of

delay between arrest and trial –– well over five years –– was extraordinary.”]; see

Doggett, supra, 505 U.S. at p. 652 [noting “the extraordinary 8 1/2-year lag

between [defendant’s] indictment and arrest”].) At oral argument, neither the

Attorney General nor counsel for defendant was aware of any other capital case in

California with a pretrial delay longer than what occurred here. In sum, the delay

in this case “clearly suffices to trigger the speedy trial enquiry.” (Ibid.) We

address further below the significance of the extent to which the delay exceeded

the minimum needed to trigger the Barker inquiry.

b. Whether defendant suffered prejudice as a result of the delay

Whether defendant suffered prejudice as a result of the delay must be

assessed in light of the interests the speedy trial right was designed to protect: “(i)

to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern

of the accused; and (iii) to limit the possibility that the defense will be impaired.”

(Barker, supra, 407 U.S. at p. 532.)

We have no difficulty concluding, even in light the complexity of the case

and the need for adequate preparation, that being jailed without a trial for seven

years is “oppressive.” (See Barker, supra, 407 U.S. at pp. 532–533 [“The time

spent in jail is simply dead time.”].) Further, although being charged with a

capital crime is bound to cause anxiety and concern under any circumstances, here

defendant expressed anxiety and concern about the pretrial delay on the record.

There can be no question that the length of pretrial incarceration in this case is a

“serious” restraint on liberty with “detrimental impact[s] on the individual.” (Id.

at p. 532; see United States v. Marion, supra, 404 U.S. at p. 320 [arrest and

pretrial incarceration “seriously interfere with the defendant’s liberty” and “may

disrupt his employment, drain his financial resources, curtail his associations,

39

subject him to public obloquy, and create anxiety in him, his family and his

friends”].)

As to whether defendant suffered the “most serious” type of prejudice, the

inability to adequately prepare his defense (Barker, supra, 407 U.S. at p. 532),

defendant contends that the delay led to “two specific and concrete losses over and

above the generalized problems inevitable in such a lengthy pretrial delay.” First,

defendant argues that “any meaningful investigation into the third parties

motivated to kill Gary Williams was dealt a severe if not fatal blow by the

significant time delays.” He says, “the number, identities, and motivations of

those individuals who wanted to kill or harm Gary Williams came to light very

late in the arduous pretrial process,” with “[t]he first inkling” of Gary’s past

surfacing only in March 1997 and the full extent of his criminal activities revealed

only in January 2002. According to defendant, had “trial occurred in 1997 or

1998, instead of 2002, . . . the identity and whereabouts of those third parties

would much more likely have been ascertained.”

Second, defendant argues that the delay allowed the state to “stabilize the

testimony of [Conya L.].” He observes that Conya L. offered varying accounts in

the weeks and months following the murders, but that she “testified with unfailing

certitude” at the trial seven years later. Defendant argues that “[t]he passage of so

much time inevitably impacts a person’s recall and perception, such that they can

crystallize and bring forth certitude from initial uncertainty and equivocation.”

The record indicates that Conya L.’s testimony at trial differed in some respects

from the account she had provided seven years earlier, a point explored during

cross-examination by the defense. (Ante, at pp. 8–9; post, at pp. 76–77, 83–84.)

The Attorney General contends that defendant’s claims of prejudice are

vague and speculative. We agree. Defendant has not specifically identified what

witnesses might have eluded the defense or what testimony might have been lost

40

or distorted as a result of the delay in this case. Defendant has not made any

particularized showing of evidentiary prejudice.

The high court has said, however, that “consideration of prejudice is not

limited to the specifically demonstrable, and . . . affirmative proof of particularized

prejudice is not essential to every speedy trial claim.” (Doggett, supra, 505 U.S.

at p. 655.) “Barker explicitly recognized that impairment of one’s defense is the

most difficult form of speedy trial prejudice to prove because time’s erosion of

exculpatory evidence and testimony ‘can rarely be shown,’ ” and “we generally

have to recognize that excessive delay presumptively compromises the reliability

of a trial in ways that neither party can prove or, for that matter, identify.” (Id. at

p. 655.)

In explaining “the role that presumptive prejudice should play” in the

speedy trial analysis, the high court in Doggett said that “its importance increases

with the length of delay.” (Doggett, supra, 505 U.S. at p. 656.) The court then

discussed how the importance of presumptive prejudice varies with the reason for

the delay. On one hand, delay occasioned by diligent prosecution would be

“wholly justifiable” and would not support a defendant’s speedy trial claim absent

a showing of “specific prejudice to his defense.” (Ibid.) On the other hand,

“official bad faith in causing delay will be weighed heavily against the

government” and, in a case of extraordinarily lengthy delay, “would present an

overwhelming case for dismissal” even without any specific showing of prejudice.

(Ibid.) Doggett went on to explain: “Between diligent prosecution and bad-faith

delay, official negligence in bringing an accused to trial occupies the middle

ground. While not compelling relief in every case where bad-faith delay would

make relief virtually automatic, neither is negligence automatically tolerable

simply because the accused cannot demonstrate exactly how it has prejudiced

him. . . . [¶] . . . Although negligence is obviously to be weighed more lightly than

41

a deliberate intent to harm the accused’s defense, it still falls on the wrong side of

the divide between acceptable and unacceptable reasons for delaying a criminal

prosecution once it has begun. And such is the nature of the prejudice presumed

that the weight we assign to official negligence compounds over time as the

presumption of evidentiary prejudice grows. Thus, our toleration of such

negligence varies inversely with its protractedness, [citation], and its consequent

threat to the fairness of the accused’s trial.” (Id. at pp. 656–657.)

In the present case, there is no allegation of official bad faith causing the

delay, but we may assume that the delay here, as in Doggett, was sufficiently

protracted that the presumption of prejudice would weigh heavily in defendant’s

favor if the cause of the delay was official negligence. We examine the all-

important question of who is to blame for the delay further below.

c. Defendant’s assertion of his right to a speedy trial

Barker rejected “the rule that a defendant who fails to demand a speedy

trial forever waives his right.” (Barker, supra, 407 U.S. at p. 528.) But the high

court cautioned that its rejection of the demand- or waiver-rule did not mean that a

defendant has no responsibility to assert his right. (Ibid.) Rather, “the defendant’s

assertion of or failure to assert his right to a speedy trial is one of the factors to be

considered in an inquiry into the deprivation of the right.” (Ibid.) “Whether and

how a defendant asserts his right is closely related to the . . . [remaining Barker

factors]. The strength of his efforts will be affected by the length of the delay, to

some extent by the reason for the delay, and most particularly by the personal

prejudice, which is not always readily identifiable, that he experiences. The more

serious the deprivation, the more likely a defendant is to complain. The

defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary

weight in determining whether the defendant is being deprived of the right.”

(Barker, supra, 407 U.S. at pp. 531–532.)

42

In applying this factor, one court has explained: “The issue is not simply

the number of times the accused acquiesced or objected; rather, the focus is on the

surrounding circumstances, such as the timeliness, persistence, and sincerity of the

objections, the reasons for the acquiescence, whether the accused was represented

by counsel, the accused’s pretrial conduct (as that conduct bears on the speedy

trial right), and so forth. [Citation.] The totality of the accused’s responses to the

delay is indicative of whether he or she actually wanted a speedy trial.” (State v.

Couture (Mont. 2010) 240 P.3d 987, 1003 (Couture).)

Defendant says he repeatedly asserted the substance of his right to a speedy

trial throughout much of the lengthy pretrial period. He emphasizes that the court

itself recognized on several occasions that it was granting delays reluctantly

“because I know [defendant] wants a speedy trial.” Although defendant

acknowledges that he waived time on several occasions, he says he did so because

he had no alternative in light of his attorneys’ lack of preparation and the

prosecution’s delays in providing discovery. In response, the Attorney General

contends that defendant consented to 17 out of 19 continuances granted by the trial

court and that his requests for a speedy trial were, in reality, repeated efforts to fire

his various court-appointed attorneys. Further, the Attorney General describes

defendant’s assertion of his right to a speedy trial as “sporadic,” noting that he did

not protest delays during the time he represented himself or when he was

represented by Mara Feiger, the only attorney who performed to defendant’s

satisfaction.

The Constitution guarantees a criminal defendant both a speedy trial and

effective representation, and it puts the burden of securing both guarantees on the

state. (See Barker, supra, 407 U.S. at p. 527 [“A defendant has no duty to bring

himself to trial; the State has that duty as well as the duty of insuring that the trial

is consistent with due process.”], italics added, fn. omitted; cf. People v. Johnson

43

(1980) 26 Cal.3d 557, 571 [construing state statutory speedy trial right to mean an

indigent defendant need not “choose between the right to a speedy trial and the

right to representation by competent counsel”].) At the same time, we have said

that a defendant may not, “ ‘by the simple expedient of refusing to cooperate with

his attorney, force a trial court to choose between [the right to a speedy trial and

effective representation], in the hope that a reviewing court will find that the trial

court has made the wrong choice.’ ” (People v. Lomax (2010) 49 Cal.4th 530, 556

(Lomax).) In the present case, we need not decide whether defendant’s pretrial

conduct on balance reflected a sincere desire to have a speedy trial or a calculated

scheme of delay and refusal to cooperate with counsel. For even assuming this

Barker factor weighs in favor of defendant, his speedy trial claim cannot succeed

on the record before us for reasons explained below.

d. Who is to blame for the delay

In the Barker analysis, the reason for the delay is the “flag all litigants seek

to capture.” (Loud Hawk, supra, 474 U.S. at p. 315.) “A deliberate attempt to

delay the trial in order to hamper the defense should be weighted heavily against

the government. A more neutral reason such as negligence or overcrowded courts

should be weighted less heavily but nevertheless should be considered since the

ultimate responsibility for such circumstances must rest with the government

rather than with the defendant. Finally, a valid reason, such as a missing witness,

should serve to justify appropriate delay.” (Barker, supra, 407 U.S. at p. 531,

fn. omitted.) In analyzing this factor, we discuss the conduct of the prosecution,

the defense, and the trial court in turn.

(1)

In examining the record, we are able to isolate only a handful of delays for

which the prosecution appears directly responsible. The prosecutor requested and

received continuances totaling about two and a half months — first to consider

44

taking a writ in response to a ruling by the trial court, and later because of his busy

trial schedule. The prosecutor was also absent for about three months due to

illness, which constitutes a “strong excuse” for delay. (Barker, supra, 407 U.S. at

p. 534.)

Defendant argues that some of the delay in this case is attributable to

discovery obstructions by the prosecution. He contends, for example, that the

prosecutor “resist[ed] . . . providing [Conya L.’s] contact information” and failed

to turn over “FBI reports concerning Gary Williams and his bank and credit union

robbery associates.” But as explained further below (post, at pp. 68–85, 92–95),

the prosecution was not obligated to disclose Conya L.’s address, had no duty to

turn over the FBI reports, and did not otherwise fail to adhere to its discovery

obligations with respect to these materials. Although defendant cites additional

examples of the prosecution’s alleged delays in producing discovery, the record on

appeal does not enable us to conclude that responsibility for the discovery disputes

should be attributed to the prosecution.

On the whole, the record shows that the prosecution, far from trying to

delay the trial, sought to try this case in a timely manner. At numerous points

from the early to the late stages of the pretrial period, the prosecution objected to

continuances of the trial date. When defendant appeared to be “in over his head”

during the period of his self-representation, the prosecution forcefully objected to

the delay and urged the trial court to revoke defendant’s Faretta status. Similarly,

after the sixth year of delay, the prosecutor arranged for Conya L. to address the

court and implored the trial judge to deny any further requests for delay. Neither

the prosecutor’s illness, the back-and-forth of discovery disputes, nor any of the

other minor delays discussed above detracts from the overall conclusion that the

state prosecuted this case diligently and was prepared to afford defendant a speedy

trial.

45

(2)

It is readily apparent from the record that defendant was responsible for the

delay arising from three discrete periods of the pretrial process. First, he

acquiesced in continuances during a 13-month period from February 1997 to

March 1998 when he appeared satisfied with Mara Feiger’s efforts to move his

case forward. Second, he consistently waived time during the final six months of

the pretrial proceedings as Bruce Cormicle prepared for trial. These two periods

of delay are properly charged to defendant.

Third, defendant was responsible for the delay that occurred during and

after his attempt at self-representation, a period which marks a distinct turning

point in the pretrial proceedings. Before defendant assumed Faretta status, there

is no indication that the trial court believed defendant was responsible for causing

delay. To the contrary, the trial court repeatedly recognized that defendant wanted

a speedy trial and, after more than four years of delay, responded to defendant’s

complaints by stating, “I think it’s safe to say it’s been your concern all along that

not enough has been done in your case.” After defendant assumed Faretta status a

year later, however, he began engaging in behavior that the trial court later

deemed dilatory. During the 10-and-a-half months defendant represented himself,

he failed to subpoena a single witness or turn over any discovery, yet he initiated a

malpractice suit against Gunn and filed multiple motions to disqualify the trial

judge and the prosecutor. He experienced conflict with his investigator, who

eventually wrote a letter to the court stating, “I find it impossible to work with Mr.

Williams.” During the hearing on June 28, 2001, the prosecutor accused the

defendant of having done “everything to delay the proceedings in his dealings with

the investigator” and further alleged that defendant had refused to cooperate with

his attorneys and was attempting to stall “in the hopes that Conya [would] die[]”

and that other witnesses would become unavailable.

46

In a ruling that marks a notable shift in tone, the trial court agreed with

defendant that he was “in over his head” and stated that “all of these have been

delay tactics.” The trial therefore revoked defendant’s Faretta status. Three

weeks later, on August 20, 2001, Gunn asked to withdraw because communication

between him and defendant had broken down and because he now believed

defendant’s pending lawsuit against him posed a conflict. The trial court stated

that “it’s another way of him delaying this trial by suing you. [¶] Next thing, Mr.

Cormicle is going to be sued for malpractice. Where does it end?” A few months

later, the trial court chastised defendant for firing his lawyers or representing

himself “[w]hen the case . . . gets near the time for trial.” These comments make

clear that the trial court believed defendant was responsible for the delays during

and after defendant’s attempt at self-representation, a finding to which we owe

deference. (See Doggett, supra, 505 U.S. at p. 652.) Accordingly, defendant is

responsible for the delay during this period as well.

Having accounted for these periods and the other minor delays discussed

above, we are still confronted with a period of roughly four years during which

defendant was incarcerated awaiting trial. Upon careful review of the record, we

think it is clear that the lion’s share of delay resulted from defense counsel’s lack

of progress in preparing this case for trial. However, because we are unable to

conclude on appellate review of the record before us that the delay resulted from a

“systemic ‘breakdown in the public defender system’ ” (Brillon, supra, 556 U.S. at

p. 94), we must, as a matter of law, charge the delay resulting from defense

counsel’s lack of progress to defendant.

(a)

From early to late in the pretrial proceedings, the record provides little

indication that defense counsel, apart from Feiger and Cormicle, worked diligently

on defendant’s case. During a Marsden hearing on January 17, 1996, after

47

defendant complained that his case was “getting nowhere” and that “[m]y attorney

had my case for six months, and it’s nothing — it’s like we ain’t took one step,”

defendant’s attorney Forest Wright said, “He’s right. I am too busy. I would like

to get rid of a few cases.” On May 3, 1996, when defendant again expressed

frustration with Wright’s lack of progress, Wright said vaguely that “we’re not in a

position to recite everything at this point, but I know there’s been a considerable

amount of work done.” Wright said that he was proceeding “as diligently as [he

could] at this point, given the staff level that [he had] among qualified persons”

but that his being “in court every day, all day” was impeding his ability to work on

motions.

After defendant again complained on August 30, 1996, that “everything

that [defense counsel] stipulated that he needed the extra 60 days for [at the last

hearing], . . . still none of them was completed,” Wright asserted that “a lot has

been done in this matter” and indicated he would be prepared for trial on October

7, 1996. Less than two weeks later, however, Wright indicated he would not be

prepared by the October 7, 1996, trial date and requested the appointment of

second counsel, which the trial court denied. On September 27, 1996, Wright

moved to continue the trial date on the ground that he had “not completed

investigation of the ‘guilt/innocence phase’ of the case” and because his “on-going

duties to represent other clients . . . necessitate[d] [his] diligent attention to nine

felony cases . . . set for jury trial before the end of November, 1996, and also to

one other death penalty case.”

In December 1996, Wright provided the prosecution with a list of

unresolved discovery issues. With the appointment of Mara Feiger as cocounsel

on January 15, 1997, hearings on discovery-related matters began to move forward

in February 1997, apparently to defendant’s satisfaction. In a motion for a

continuance filed on March 28, 1997, Wright stated in a sworn declaration: “In

48

part, as a consequence of my schedule and case load, I was unable to focus on the

instant case to the degree which I should have. The . . . extent of that this situation

has affected the present state of preparedness for trial, I must take full

responsibility. Since February 1997, however, I have not been assigned new

cases.”

After more than a year of litigating discovery disputes, the public

defender’s office declared a conflict requiring Wright and Feiger to withdraw.

The public defender’s office did not explain the conflict, stating only that it was “a

result . . . of information that we received recently from the prosecution . . . we felt

should have been provided much earlier in the case.” The trial court relieved

Wright and Feiger on April 3, 1998, which resulted in six months of apparent

inactivity as the criminal defense panel attempted to secure counsel for defendant

and as two CDP attorneys, Grover Porter and Douglas Myers, were each appointed

but then quickly relieved.

At the beginning of October 1998, John Aquilina was appointed to

represent defendant. Over the next several months, Aquilina sought two

continuances to evaluate the case and to conduct investigation. On April 23, 1999,

seven months into his representation of defendant, Aquilina told the trial court in

camera that “no investigation [to] my knowledge has been conducted since the

public defender’s office was relieved in April of ’98.” He said that Porter had

retained an investigator in June 1998 but that neither Porter nor Aquilina had

asked the investigator to “conduct any investigation whatsoever.” The record

discloses no reason why defense counsel had not utilized the investigator.

Aquilina said a new investigator would be available in June 1999. At the same

hearing, nearly four years after defendant was arrested, Aquilina said “it would

appear all an attorney would have to do [after Wright and Feiger withdrew] is

catch up to what has occurred. Quite candidly, I don’t see that even five percent

49

of the investigation necessary in the guilt phase of this case has been conducted.”

Further, Aquilina acknowledged he had not been able to work on defendant’s case

because he had been engaged on two other capital cases and because “mentally,

emotionally, psychologically” he could not handle “three capital cases in one year

in a twelve-month period.”

After seeking a further continuance on May 13, 1999, Aquilina eventually

withdrew from the case on August 30, 1999, because of a conflict of interest. The

record does not show that much, if anything, was accomplished in defendant’s

case during the 11 months of Aquilina’s appointment. The table of contents for all

records filed during Aquilana’s representation shows that there were 11 trial

readiness conferences, two motions to continue, two Marsden motions, and

nothing else.

On September 2, 1999, David Gunn was appointed to represent defendant.

Gunn told the court he needed several weeks to evaluate the case and to secure

cocounsel. On December 17, 1999, the trial court granted the prosecution’s

motion to sever defendant’s case from that of his codefendant, and Bruce

Cormicle joined the case as cocounsel for defendant. On December 21, 1999,

Gunn sought a continuance because he had “about eight murder cases still set

pending for next year,” and the court continued the trial date to October 2, 2000.

During an April 7, 2000, status conference, Gunn said in passing that the defense

was “on track” but that he had “lost [his] investigator due to family problems” and

that he was trying to get new investigators “on board.” On June 9, 2000, Gunn

told the court that he had just gotten funding approved for an investigator and that

before the funding approval, there was “about two months where we kind of lost

our ability to have investigative work done.” On July 14, 2000, after defendant

complained that no investigation had occurred and that “the case been at a stand

still for 10 months since Dave Gunn been on the case,” Gunn acknowledged that

50

he had lost “three to four months, in terms of actual preparation of the

investigation” due to problems finding an investigator and obtaining the requisite

funding. Gunn also acknowledged that the investigator had not met with

defendant since funding was approved because of “vacations” and because of the

investigator’s work on another death penalty case.

The reporter’s transcript from September 2, 1999, to August 16, 2000,

amounts to only 93 pages, most of which consist of Marsden hearings. The

clerk’s transcript for this period consists mainly of 11 minute orders noting trial

readiness conferences. Gunn, like Aquilina, did not appear to pursue any of the

discovery that Feiger sought from the prosecution in 1997 and that Cormicle

finally obtained in 2002. The record does not indicate how much investigation

actually occurred under Gunn’s supervision. Gunn acknowledged that he had lost

his investigator by early April 2000, and two years later, Cormicle, who served as

cocounsel with Gunn and then inherited the case when Gunn withdrew, said he

“basically started from scratch.” If Gunn had made meaningful progress on

defendant’s case, presumably Cormicle would have known about it.

From August 2000 to June 2001, defendant represented himself, and Gunn

was appointed as standby counsel. After the trial court revoked defendant’s

Faretta status, Gunn resumed his representation of defendant, and the court, at

Gunn’s request, continued the matter to August 20, 2001. On August 20, 2001,

Gunn asked to withdraw from the case because of a breakdown in his relationship

with defendant and because of defendant’s malpractice suit against him — a

potential conflict that defendant had brought to Gunn’s attention 10 and a half

months earlier on October 6, 2000.

After Cormicle took over the case, the trial court granted several

continuances requested by Cormicle before setting the eventual trial date of July 1,

2002. Between August 2001 and July 2002, it appears that Cormicle pursued the

51

case with reasonable diligence. On April 23, 2002, Cormicle complained at length

that he was still receiving documents “that should have been turned over seven

years ago but were not.” The prosecution responded, “The problem with why that

was not turned over earlier is because of the revolving door of defense attorneys”

who failed to “follow through” with discovery. On April 25, 2002, nearly seven

years after defendant was arrested, Cormicle told the court: “We basically started

from scratch; nothing had been done for the past six years essentially.”

The record thus indicates that most of the delay in this case, apart from the

periods already attributed to defendant, resulted from defense counsel’s failure to

make progress in preparing defendant’s case. Consistent with defendant’s

frequent complaints, defense counsel repeatedly acknowledged — at the

beginning, in the middle, and even toward the end of the pretrial period — that

little or no work had been done on defendant’s case. The problem was

exacerbated by what the prosecution called “the revolving door of defense

attorneys.” Defendant was represented by a total of eight attorneys over the

seven-year period — two from the public defender’s office (Wright and Feiger)

and six from the criminal defense panel (Porter, Myers, Aquilina, Filippone, Gunn,

and Cormicle) — each of whom needed time to review the case and many of

whom apparently spent months doing little or no work on the case, only to

withdraw later because of a conflict.

We are mindful of the weight and complexity of the heavy caseloads that

many public defenders carry, and we recognize the essential service that public

defenders provide to their clients and to the criminal justice system. Further, we

realize that defense counsel generally act out of duty and good faith when they

resist subjecting their clients to trial until defense theories and evidence have been

fully investigated and developed. Here, however, the apparent inability of

multiple attorneys — first Deputy Public Defender Forest Wright and then CDP

52

attorneys Grover Porter, Douglas Myers, John Aquilina, Regina Filippone, and

David Gunn — to move defendant’s case forward in a timely manner suggests

more than the usual challenges facing appointed counsel.

(b)

The question is whether defense counsel’s failure to make progress in

defendant’s case is chargeable to the state or to defendant for purposes of speedy

trial analysis. In Brillon, supra, 556 U.S. 81, the United States Supreme Court

established a “general rule” that “delays sought by [assigned] counsel are

ordinarily attributable to the defendants they represent.” (Id. at pp. 85, 94.) The

high court cautioned, however, that “the State may bear responsibility if there is ‘a

breakdown in the public defender system.’ ” (Id. at p. 85.) We must examine

whether the delays that occurred in this case were the result of such a breakdown.

The high court has not had occasion to explain what constitutes a

breakdown in the public defender system, although it concluded that no such

breakdown occurred in Brillon. The defendant in Brillon was arrested on felony

domestic assault and habitual offender charges in July 2001 and convicted by a

jury in June 2004. (Brillon, supra, 556 U.S. at p. 84.) “During the time between

Brillon’s arrest and his trial, at least six different attorneys were appointed to

represent him.” (Ibid.) Brillon’s trial was initially scheduled for February 2002.

Four days before jury selection, Brillon’s first attorney, Richard Ammons, “moved

for a continuance, citing his heavy workload and the need for further

investigation.” (Id. at p. 86.) The trial court denied the motion, at which point

Brillon announced: “ ‘You’re fired, Rick.’ ” (Ibid.) Three days later, on the eve

of trial, the trial court “granted Ammons’s motion to withdraw as counsel, citing

Brillon’s termination of Ammons and Ammons’ statement that he could no longer

zealously represent Brillon.” (Ibid.; see id. at p. 86, fn. 3 [noting that Ammons

also cited “ ‘certain irreconcilable differences in preferred approach between Mr.

53

Brillon and counsel as to trial strategy, as well as other legitimate legal

decisions’ ”].) “The trial court warned Brillon that further delay would occur

while a new attorney became familiar with the case.” (Id. at p. 86.)

Brillon’s second attorney withdrew almost immediately “based on a

conflict.” (Brillon, supra, 556 U.S. at p. 86.) A third attorney, Gerard Altieri,

represented Brillon from March 2002 to June 2002. During this period, Brillon

moved to dismiss Altieri because of “failure to file motions, ‘[v]irtually no

communication whatsoever,’ and his lack of diligence ‘because of heavy case

load.’ ” (Ibid.) At a June 11, 2002, hearing on Brillon’s motion, “Altieri denied

several of Brillon’s allegations, noted his disagreement with Brillon’s trial

strategy, and insisted he had plenty of time to prepare.” (Id. at pp. 86–87,

fn. omitted.) Later that day, however, “Altieri moved to withdraw on the ground

that Brillon had threatened his life during a break in the proceedings. The trial

court granted Brillon’s motion to dismiss Altieri, but warned Brillon that ‘this is

somewhat of a dubious victory in your case because it simply prolongs the time

that you will remain in jail until we can bring this matter to trial.’ ” (Id. at p. 87.)

“That same day, the trial court appointed Paul Donaldson as Brillon’s fourth

counsel.” (Ibid.)

A few weeks later, Brillon complained about Donaldson’s

“unresponsive[ness] and lack of competence” and, as with Altieri, moved to

dismiss Donaldson “for failure to file motions and ‘virtually no communication

whatsoever.’ ” (Brillon, supra, 556 U.S. at p. 87.) When Donaldson reported that

his contract with the public defender’s office had expired, the trial court released

him on November 26, 2002, without making any findings regarding the adequacy

of his representation. His fifth attorney, David Sleigh, was appointed on January

15, 2003, but withdrew on April 10, 2003, because of a change to his firm’s

contract with the public defender’s office. Brillon was without counsel for the

54

next four months. His sixth attorney, Kathleen Moore, was appointed on August

1, 2003. Moore filed a motion to dismiss on speedy trial grounds on February 23,

2004, which the trial court denied. Moore brought the case to trial on June 14,

2004. After Brillon was convicted, Moore again filed a motion to dismiss for lack

of a speedy trial, which the trial court again denied. (Id. at pp. 87–88.)

The Vermont Supreme Court concluded that the three-year delay violated

Brillon’s right to a speedy trial, reasoning that “delay caused by assigned

counsel’s ‘inaction’ or failure ‘to move [the] case forward’ is chargeable to the

State, not the defendant.” (Brillon, supra, 556 U.S. at p. 92.) The United States

Supreme Court reversed and held that “delays sought by counsel are ordinarily

attributable to the defendants they represent.” (Id. at p. 85.) The extensions and

continuances sought by Brillon’s attorneys “must . . . be attributed to Brillon as

delays caused by his counsel,” and “their ‘inability or unwillingness . . . to move

the case forward,’ [citation], may not be attributed to the State simply because

they are assigned counsel.” (Id. at pp. 92–93.) In support of its holding, the high

court said: “A contrary conclusion could encourage appointed counsel to delay

proceedings by seeking unreasonable continuances, hoping thereby to obtain a

dismissal of the indictment on speedy-trial grounds. Trial courts might well

respond by viewing continuance requests made by appointed counsel with

skepticism, concerned that even an apparently genuine need for more time is in

reality a delay tactic.” (Id. at p. 93.)

In addition, the high court held that the Vermont court also “erred by

treating the period of each counsel’s representation discretely” instead of “tak[ing]

into account Brillon’s role during the first year of delay in ‘the chain of events that

started all this.’ [Citation.]” (Brillon, supra, 556 U.S. at p. 93.) The high court

noted that Brillon had fired Ammons on the eve of trial and that Brillon’s

“strident, aggressive behavior with regard to Altieri, whom he threatened, . . .

55

likely made it more difficult . . . to find replacement counsel. Even after the trial

court’s warning regarding delay, Brillon sought dismissal of yet another attorney,

Donaldson.” (Ibid.) The high court explained that “[a]bsent Brillon’s deliberate

efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would

have arisen,” and that the subsequent delay in his case must be viewed in the

context of these earlier events. (Id. at p. 94.)

Finally, the high court said: “The general rule attributing to the defendant

delay caused by assigned counsel is not absolute. Delay resulting from a systemic

‘breakdown in the public defender system,’ [citation], could be charged to the

State.” (Brillon, supra, 556 U.S. at p. 94.) In addition, “gaps result[ing] from the

trial court’s failure to appoint replacement counsel with dispatch” may be charged

to the State. (Id. at 85.) In Brillon, “the Vermont Supreme Court made no

determination, and nothing in the record suggests, that institutional problems

caused any part of the delay in Brillon’s case.” (Id. at p. 94.)

The case before us differs from Brillon in certain respects. In Brillon, the

defendant’s disruptive conduct during the first year of the pretrial period led to

subsequent delay. (Brillon, supra, 556 U.S. at pp. 93–94.) Here, there is no

indication that defendant disrupted proceedings except for his efforts, after waiting

five years for a trial, to remove Gunn out of frustration with the lack of progress in

his case. As noted, defendant is responsible for the delay caused by his self-

representation. But there is no indication that defendant ever acted in a “strident”

or “aggressive” manner, or that he ever “threatened [the] life” of his attorneys or

made it difficult to appoint counsel. (Id. at p. 93.) It is true that defendant filed a

malpractice suit against Gunn around October 2000. But unlike “Brillon’s role

during the first year of delay in ‘the chain of events that started all this’ ” (ibid.),

defendant’s lawsuit occurred more than five years into the pretrial period.

Because it appears that Gunn had accomplished little up to that point, it is unlikely

56

the conflict posed by the lawsuit somehow sapped the defense effort of

momentum. Moreover, Gunn acknowledged that defendant had been cooperative

with his cocounsel Cormicle. Had Gunn withdrawn earlier instead of waiting until

August 2001 to declare a conflict, Cormicle, who eventually brought the case to

trial, would have become lead counsel earlier.

Moreover, whereas Brillon sought to dismiss his attorneys (in one instance

on the eve of trial) in part because of his own preferences concerning trial strategy

(see Brillon, supra, 556 U.S. at p. 86, fn. 3; id. at p. 86 & fn. 4), the record here

indicates that defendant’s Marsden motions (at least those filed before his Faretta

status) were his way of complaining not about trial strategy but about his

attorneys’ continual and often conceded lack of progress in preparing for trial.

Not all of defendant’s Marsden motions sought to dismiss counsel; the trial court

acknowledged the purpose of defendant’s Marsden motions when it said in April

1999, “I’ve held a few Marsden motions with you and a few motions that weren’t

truly Marsden motions, but when we got to talk about what’s going on — and I

think it’s safe to say it’s been your concern all along that not enough has been

done in your case.”

Because Brillon’s conduct during the first year resulted in subsequent

delays (see Brillon, supra, 556 U.S. at p. 94 [“Absent Brillon’s deliberate efforts

to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have

arisen.”]), the high court characterized “the three-year delay” as “caused mostly by

Brillon” (id. at p. 92, fn. 8). Here, by contrast, defendant endured a much longer

delay, approximately four years of which resulted from the chronic lack of

progress and repeated coming and going of defense counsel notwithstanding

defendant’s recurring complaints that nothing was being done to bring him to trial.

57

(c)

Brillon did not define what constitutes a “systemic ‘breakdown in the

public defender system.’ ” (Brillon, supra, 556 U.S. at p. 94.) But the high court

did advert to “institutional problems” (ibid.), presumably in contrast to problems

with individual attorneys. In this appeal, defendant contends that the “revolving

door” of appointed counsel over the lengthy pretrial period qualifies as a

“ ‘systemic breakdown in the public defender system’ ” within the meaning of

Brillon. As detailed above, the record indicates that several of defendant’s

attorneys appeared to make little or no progress in preparing his case for trial. But

our specific focus in this inquiry must be on whether a systemic breakdown has

occurred, not on whether any particular attorney or attorneys performed

deficiently. It is possible that the “revolving door” of appointed counsel in this

case is indicative of “institutional problems” (Brillon, at p. 94) in Riverside

County’s Indigent Defense Program. But the record on appeal contains no facts

that affirmatively support this conclusion. Because defendant did not file a motion

to dismiss on speedy trial grounds in the trial court, the underlying cause of the

delay in this case was never litigated, the various statements by defendant and his

attorneys were never examined in an adversarial proceeding, and the trial court

made no findings that might inform the issue before us.

As a result, there is much we do not know about why this case appeared to

languish in the hands of several of defendant’s attorneys. We do not know

whether the unspecified conflict that ended Forest Wright and Mara Feiger’s

representation after more than two and a half years was reasonably avoidable, or

whether it resulted from a flaw in the public defender’s mechanism for identifying

and avoiding conflicts. We do not know whether the conflict that ended John

Aquilina’s representation after 11 months could reasonably have been avoided or

discovered earlier by Aquilina or by the criminal defense panel, or whether it was

58

simply an unfortunate but unforeseeable happenstance. We do not know whether

the sixth-month delay in 1998 before Aquilina’s appointment, during which

defendant did not have stable counsel, resulted from problems in the criminal

defense panel’s assignment system, or whether it resulted from mishaps that could

not reasonably be anticipated or prevented. And with respect to the various

attorneys who appeared to do little or no work on defendant’s case, we do not

know whether the lack of progress was attributable to each attorney’s own

inability to properly manage or prioritize his or her caseload, or whether the

performance of individual attorneys was indicative of unreasonable resource

constraints, misallocated resources, inadequate monitoring or supervision, or other

systemic problems.

As noted earlier, the record in this case suggests more than the usual

challenges facing appointed counsel. But in the absence of evidence identifying

systemic or institutional problems and not just problems with individual attorneys,

we are unable to conclude on direct appeal that the delay experienced by

defendant resulted from a breakdown in the public defender system. In other

words, the record before us contains no facts about the public defender system that

would support a finding of a systemic breakdown. Accordingly, on this record, we

are required by Brillon to charge to defendant the delay in this case resulting from

defense counsel’s lack of progress.

(3)

We turn finally to the role of the trial court. Defendant contends that the

trial court’s denial of his motion to sever his case from that of his codefendant

“was another significant cause of pretrial delay.” But there is a statutory

preference for joint trials of jointly charged defendants (§ 1098), and “past

decisions of this court make it clear that the substantial state interests served by a

joint trial properly may support a finding of good cause to continue a

59

codefendant’s trial” (People v. Sutton (2010) 48 Cal.4th 533, 560; see also

§ 1050.1). During the early stages of the pretrial proceedings, the trial court

properly found that the state interests served by a joint trial justified denial of the

severance motion. Later, when it became clear that separate trials would likely be

required to obviate Aranda/Bruton concerns (see People v. Aranda (1965) 63

Cal.2d 518, 530 [severance may be appropriate when prosecution proposes to

introduce into evidence an extrajudicial statement of one defendant that implicates

a codefendant]; Bruton v. United States (1968) 391 U.S. 123 [nontestifying

codefendant’s extrajudicial statement that incriminates the other defendant is

inadmissible at a joint trial]), the trial court agreed to sever the cases. We find no

error in these decisions.

Defense counsel’s lack of progress put the trial court in a difficult position.

When a defense attorney requests more time to prepare for trial, the trial court

must balance a defendant’s right to a speedy trial with his right to competent

counsel. (Lomax, supra, 49 Cal.4th at p. 556.) “If counsel seeks reasonable time

to prepare a defendant’s case, and the delay is for defendant’s benefit, a

continuance over the defendant’s objection is justified.” (Ibid.) At the same time,

the high court has said that “the primary burden [falls] on the courts and the

prosecutors to assure that cases are brought to trial.” (Barker, supra, 407 U.S. at

p. 529.) In this case, the prosecution was prepared to bring defendant to trial, but

the trial court repeatedly indulged defense counsel’s requests for continuances due

to lack of preparation.

We appreciate the dilemma confronting the trial court and do not suggest

that it abused its discretion in granting the 19 continuances that occurred here. But

we note (with the obvious benefit of hindsight) that the trial court could have done

more to move this case to trial once the mounting delay became evident. For

example, when Aquilina informed the court in April 1999 that he had done no

60

work on the case but would soon get started, the court accepted Aquilina’s

assurances and, a few weeks later, continued the trial date. The court did not insist

on a timeline for investigation or discovery, or otherwise more closely monitor

progress in the case, even as it recognized that the case was “the oldest one in the

courthouse.” Subsequently, Gunn took over the case in September 1999. Ten

months later, in July 2000, defendant complained that no investigation had

occurred under Gunn, and Gunn acknowledged he had lost his investigator three

or fourth months earlier. Despite these problems, and despite no indication that

Gunn had pursued any discovery, the trial court — five years after defendant’s

arrest — again did not insist on a firm timeline or otherwise hold Gunn’s or the

CDP’s feet to the fire. Instead of conveying a sense of urgency, the court said that

“to have adequate representation and be prepared for trial is a must. Whether or

not that gets done on a full-time basis working from sun up to sundown for a short

period of time, or anything in between that, and working an hour all day for 10

years I don’t think is what’s important. [¶] What’s important is, is there adequate

representation at the time we get started at trial? And so I can’t even pretend that I

know enough or that I have the power or authority to tell Mr. Gunn you must work

ex number of hours this week on this case, because he has to manage his calendar.

He’s got other clients he is also working for. . . .”

In granting continuances at the request of defense counsel, the trial court

understandably sought to ensure adequate preparation and a fair trial. “What is

clear, though” — to borrow apt language from a decision of a sister high court —

“is that the [trial court] accommodated repeated requests to postpone hearings,

extend deadlines, and continue the trial based on vague assertions about more time

being needed. The record reflects that the court was concerned about

[defendant’s] right to prepare a defense, but also about the ramifications the delays

were having on his right to a speedy trial. And we commend the court for trying

61

to make the best of a difficult situation in which it had to replace defense counsel

[multiple] times and, in so doing, had to give new counsel time and leeway to get

up to speed on the case. But it must be remembered that ‘ “the primary burden” to

assure that cases are brought to trial is “on the courts and the prosecutors.” ’

[Citation, quoting Barker, 407 U.S. at p. 529.] Furthermore, ‘society has a

particular interest in bringing swift prosecutions, and society’s representatives are

the ones who should protect that interest.’ [Barker, at p. 527.] Thus, the trial

court has an affirmative constitutional obligation to bring the defendant to trial in a

timely manner. [Citation.] And to that end, it is entirely appropriate for the court

to set deadlines and to hold the parties strictly to those deadlines unless a

continuance is justified by a concrete showing of good cause for the delay.

[Citation.] The trial judge is the captain of the ship; and it goes without saying

that the ship will go in circles if the crew is running around the deck with no firm

marching orders.” (Couture, supra, 240 P.3d at pp. 1009–1010.)

We do not find the trial court directly responsible for the delay in this case.

We caution, however, that trial courts must be vigilant in protecting the interests

of the defendant, the prosecution, and the public in having a speedy trial.

e. Overall balance of Barker factors

As noted, the speedy trial analysis involves “a difficult and sensitive

balancing process” that “necessarily compels courts to approach speedy trial cases

on an ad hoc basis.” (Barker, supra, 556 U.S. at pp. 530, 533.) In this case, the

length of the delay is extraordinary, far greater than the minimum necessary to

trigger the Barker inquiry. Further, we have assumed without deciding that during

the five years before his self-representation, defendant’s repeated assertions of his

desire to have a speedy trial were sincere. The remaining two Barker factors,

however, weigh against defendant. Defendant was directly responsible for three

of the seven years of pretrial delay as he waived time to allow his attorneys to

62

prepare his case and caused delays by attempting to represent himself. His

attorneys were responsible for the remaining four years, and because we cannot

conclude on this record that the delays caused by defendant’s counsel resulted

from a systemic breakdown in the public defender system, the delay caused by

assigned counsel must be charged to defendant. (Brillon, supra, 556 U.S. at

p. 94.) Defendant has failed to demonstrate specific prejudice resulting from the

delay, and despite the oppressive nature of pretrial incarceration and the anxiety it

produces, he cannot benefit from a presumption of prejudice because the record

does not show that the state was responsible for the delay. (Doggett, supra, 505

U.S. at pp. 656–657.) Thus, based on the totality of the Barker factors, we

conclude on this record that defendant’s right to a speedy trial was not violated.

3. Speedy Trial Right Under California Constitution and Statutory Law

In passing, defendant mentions that “California statutory law also outlines

the right of the accused to a speedy trial.” He notes that California’s statutory

provisions are “supplementary to and a construction of the state constitutional

speedy trial guarantee.” (People v. Martinez (2000) 22 Cal.4th 750, 766.)

Defendant declined to brief any speedy trial claim under state law, however,

noting simply that “[t]he potential for pretrial delays to fall within one of the

California Penal Code’s exclusions may well undermine many attempts to appeal

on statutory speedy trial grounds.” Thus, defendant has effectively conceded he

has no meritorious speedy trial claim under California law.

B. In Propria Persona Status and Standby Counsel

1. Revocation of In Propria Persona Status

Defendant next contends that his Sixth Amendment right of self-

representation was violated when the trial court revoked his Faretta status. He

argues that “[t]he trial judge’s rationale for termination of [defendant’s] Faretta

63

rights — that [defendant] was using dilatory practices — is not supported by the

record.” We disagree.

A criminal defendant has a right to represent himself at trial under the Sixth

Amendment to the United States Constitution. (Faretta, supra, 422 U.S. 806;

People v. Marshall (1997) 15 Cal.4th 1, 20.) “A trial court must grant a

defendant’s request for self-representation if the defendant knowingly and

intelligently makes an unequivocal and timely request after having been apprised

of its dangers.” (People v. Valdez (2004) 32 Cal.4th 73, 97–98.) Erroneous denial

of a Faretta motion is reversible per se. (People v. Dent (2003) 30 Cal.4th 213,

218.)

However, the right of self-representation is not absolute. “[The]

government’s interest in ensuring the integrity and efficiency of the trial at times

outweighs the defendant’s interest in acting as his own lawyer.” (Martinez v.

Court of Appeal (2000) 528 U.S. 152, 161.) “The right of self-representation is not

a license to abuse the dignity of the courtroom. Neither is it a license not to

comply with relevant rules of procedural and substantive law.” (Faretta, supra,

422 U.S. at pp. 834–835, fn. 46; see also People v. Butler (2009) 47 Cal.4th 814

[“The court may deny a request for self-representation that . . . is intended to delay

or disrupt the proceedings.”].) “Thus, a trial court must undertake the task of

deciding whether a defendant is and will remain so disruptive, obstreperous,

disobedient, disrespectful or obstructionist in his or her actions or words as to

preclude the exercise of the right to self-representation. The trial court possesses

much discretion when it comes to terminating a defendant’s right to self-

representation and the exercise of that discretion ‘will not be disturbed in the

absence of a strong showing of clear abuse.’ ” (People v. Welch (1999) 20 Cal.4th

701, 735.)

64

Because we have already recounted the relevant factual background and

procedural history above, we highlight here only the most salient points. When

the trial court granted defendant’s request to represent himself on August 16,

2000, defendant assured the trial court that he would be prepared for trial by

February 5, 2001. By the time the trial court revoked defendant’s Faretta status

on June 28, 2001, defendant had exceeded this deadline by almost five months.

While proceeding in propria persona, defendant requested and received two

continuances and did not object to a third continuance requested by standby

counsel.

During the 10-and-a-half-month period during which defendant represented

himself, defendant repeatedly complained about David Gunn and made multiple

motions to remove him as standby counsel despite the fact that the trial court had

made clear that Gunn had no control over defendant and played no role in

defendant’s preparation of his defense. Defendant also filed three separate

motions to disqualify the trial judge pursuant to Code of Civil Procedure section

170.1; moved to disqualify the prosecutor pursuant to Penal Code section 1424;

and filed a motion for a change of venue. These motions were denied. During the

same period, defendant did not subpoena any witnesses or turn over any discovery.

The record demonstrates that defendant did not engage in efficient

investigation and trial preparation. Although the prosecutor represented to the trial

court that he had given his investigator’s phone number to defendant, defendant

did not make contact with the investigator. Defendant claimed that the

investigator never answered the phone, but the prosecutor countered that

defendant never actually called. During a June 15, 2001, trial readiness

conference, the trial court said that it had received a letter from defendant’s court-

appointed investigator notifying the court that the investigator was “no longer” on

the case and asking for his appointment to be terminated. In the letter, the

65

investigator stated: “I find it impossible to work with Mr. Williams.” The trial

court granted the investigator’s request and relieved him from the case. On June

28, 2001, when the trial court asked defendant if he had retained a new

investigator, defendant stated: “No. I do plan on, yes.”

During a hearing on June 28, 2001, the prosecutor alleged that defendant

was engaging in delay tactics and urged the trial court to relieve defendant of his

Faretta status. According to the prosecutor, defendant had “done everything to

delay the proceedings in his dealings with the investigator,” and defendant was

“no closer to trial today than he was a year ago.” In response, defendant

challenged the prosecutor’s factual representations but also acknowledged that he

was “in over [his] head.” He then stated: “I — at this point, I’m kind of, like, fed

up. Whatever y’all want to do. . . . This is your house. I’m burnt out. [¶] . . . So

if you want to take my pro per status, fine. This is your courtroom. Do what you

want to do. I don’t care. But don’t give it to [attorney David Gunn]. That’s the

whole thing I’ve been fighting. That is why I filed the motion to remove him as

standby counsel, because when he was counsel he ain’t doing nothing.”

The trial court then issued the following ruling: “I make the following

findings: That [defendant] has had — and I do not know the number of Marsden

motions. I can’t even count the number of lawyers that he’s had. . . . [¶] I find

that I agree with [defendant], he’s in over his head. And that all of these have

been delay tactics. And I’m going to remove him from his pro per status.”

“[T]he Faretta right is forfeited unless the defendant ‘ “articulately and

unmistakably” ’ demands to proceed in propria persona.” (People v. Valdez,

supra, 32 Cal.4th at p. 99.) By conceding that he was in over his head and

acquiescing to the revocation of his Faretta status, defendant did not unmistakably

demand to continue in propria persona. Defendant has therefore forfeited this

claim. (See People v. Rudd (1998) 63 Cal.App.4th 620, 628–630 [holding that

66

defendant forfeited his objection to an order revoking his pro se status by raising it

for the first time on appeal].)

Forfeiture aside, defendant’s claim fails on the merits. By the time

defendant’s Faretta status was revoked, defendant had been proceeding in propria

persona for over 10 months and had missed the ready-for-trial deadline by five

months. During this period, defendant did not conduct any meaningful

investigation or engage in any discovery. Defendant conceded, and the trial court

found, that he was “in over his head.” The trial court did not abuse its discretion

in finding that defendant had engaged in “delay tactics” in the course of his self-

representation. Accordingly, we find no violation of defendant’s Sixth

Amendment right to self-representation.

2. Standby Counsel

Defendant next asserts that the trial court’s refusal to remove attorney

David Gunn as standby counsel while he was proceeding in propria persona

“denied [defendant] the assistance of conflict-free counsel throughout the ten

months of his representation, in violation of the Sixth Amendment.” Defendant is

incorrect.

It is well-established that “a defendant has no right, under either the federal

or state Constitution, to ‘hybrid representation.’ Criminal defendants have the

constitutional right to have an attorney represent them, and the right under the

federal Constitution to represent themselves, but these rights are mutually

exclusive.” (People v. Moore (2011) 51 Cal.4th 1104, 1119–1120, fn. omitted.)

“Of course, a State may — even over objection by the accused — appoint a

‘standby counsel’ . . . to be available to represent the accused in the event that

termination of the defendant’s self-representation is necessary.” (Faretta, supra,

422 U.S. at p. 834, fn. 46.) We have explained that “standby counsel . . . takes no

active role in the defense, but attends the proceedings so as to be familiar with the

67

case in the event that the defendant gives up or loses his or her right to self-

representation . . . .” (People v. Moore, supra, 51 Cal.4th at pp. 1119, fn. 7, italics

added.)

Because defendant had no Sixth Amendment right to any counsel while he

was proceeding in propria persona, he certainly had no Sixth Amendment right to

assertedly “conflict-free” standby counsel. Accordingly, even assuming that Gunn

did have a conflict of interest, defendant’s claim fails.

C. Prosecution’s Obligations Under Brady v. Maryland

Defendant contends that the prosecution failed to timely disclose certain

discovery materials he maintains were favorable to the defense, thus violating his

due process rights under Brady, supra, 373 U.S. 83. “Under the federal

Constitution’s due process clause, as interpreted by the high court in Brady . . . ,

the prosecution has a duty to disclose to a criminal defendant evidence that is ‘

“both favorable to the defendant and material on either guilt or punishment.” ’

[Citations]. The prosecution’s withholding of favorable and material evidence

violates due process ‘irrespective of the good faith or bad faith of the prosecution.’

[Citation.]” (In re Bacigalupo (2012) 55 Cal.4th 312, 333.) “For Brady purposes,

evidence is favorable if it helps the defense or hurts the prosecution, as by

impeaching a prosecution witness.” (People v. Zambrano (2007) 41 Cal.4th 1082,

1132.) “[The] touchstone of materiality is a ‘reasonable probability’ of a different

result . . . . The question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict worthy of

confidence. A ‘reasonable probability’ of a different result is accordingly shown

when the government’s evidentiary suppression ‘undermines confidence in the

outcome of the trial.’ ” (Kyles v. Whitley (1995) 514 U.S. 419, 435.) In

determining whether evidence is material under this standard, we consider “ ‘the

68

effect of the nondisclosure on defense investigations and trial strategies.’ ”

(People v. Verdugo (2010) 50 Cal.4th 263, 279.)

The prosecution is obligated to disclose favorable and material evidence

“whether the defendant makes a specific request [citation], a general request, or

none at all [citation].” (In re Brown (1998) 17 Cal.4th 873, 879.) “The scope of

[the prosecution’s] disclosure obligation extends beyond the contents of the

prosecutor’s case file and encompasses the duty to ascertain as well as divulge

‘any favorable evidence known to the others acting on the government’s behalf

. . . .’ [Citation.]” (Ibid.) A determination that the prosecution improperly

withheld material information requires reversal without further harmless error

analysis. (Kyles v. Whitley, supra, 514 U.S. at p. 435; People v. Zambrano, supra,

at p. 1133.)

Defendant contends that the prosecution violated its Brady obligations by

failing to timely disclose (1) information regarding Gary’s criminal activities and

associates; (2) a four-page FBI report regarding prosecution witness Robert Scott;

(3) information regarding a potential prosecution witness, Tami Wilkerson; and

(4) the address of prosecution witness Conya L. We address each contention in

turn.

1. Gary’s Criminal Activities and Associates

Defense counsel represented to the trial court that during a meeting with the

prosecutor on January 9, 2002, he came across a previously undisclosed one-page

document entitled “Gary and 100 bandits” outlining the numerous bank robberies

Gary was believed to have committed with the assistance of various associates.

During in-court conferences held on January 23, 2002, and March 29, 2002,

defense counsel requested and received continuances of the trial date to investigate

these robberies and the individuals involved. During the March 29, 2002,

conference, defense counsel represented that the FBI had recently granted him

69

access to files pertaining to these matters and maintained that he needed more time

to review the materials. On May 1, 2002, defense counsel requested and received

an additional continuance to investigate the potential for “third-party liability,”

i.e., the possibility that one of Gary’s associates had committed the charged

crimes. Jury selection began on July 1, 2002.

Defendant now argues that “[t]he prosecution’s undue delay in revealing

the existence of potentially exculpatory evidence related to Gary’s numerous

robberies and associates with motives to kill him . . . resulted in a denial of the

defense’s ability to fully investigate those materials or to render a complete

defense at trial.”

However, the fact that victim Gary Williams had been involved in bank

robberies was no secret; his history as a bank robber had been disclosed at the very

beginning of the case. As early as the preliminary hearing on January 4, 1996, for

example, defense counsel cross-examined Conya L. regarding her knowledge of

Gary’s criminal activities. Further, the prosecution stipulated at trial that Gary

was a bank robber who had worked in conjunction with other bank robbers, and

Scott testified that he and Gary had worked together to commit over 20 armed

credit-union robberies during the early 1990s. Thus, the critical facts regarding

Gary’s past had been fully disclosed, and the defense was free to investigate. The

fact that defense counsel did not appear to investigate diligently for much of the

pretrial period has no bearing on the Brady analysis: “the prosecutor had no

constitutional duty to conduct defendant’s investigation for him.” (People v.

Morrison (2004) 34 Cal.4th 698, 715.) “Because Brady and its progeny serve ‘to

restrict the prosecution’s ability to suppress evidence rather than to provide the

accused a right to criminal discovery,’ the Brady rule does not displace the

adversary system as the primary means by which truth is uncovered. [Citation.]

Consequently, ‘when information is fully available to a defendant at the time of

70

trial and his only reason for not obtaining and presenting the evidence to the Court

is [the defendant’s] lack of reasonable diligence, the defendant has no Brady

claim.’ ” (Ibid.)

Moreover, defendant’s last attorney, Cormicle, learned of the existence of

the “Gary and 100 bandits” document more than six months before the trial began.

Cormicle was granted three separate continuances to conduct additional

investigation into the possibility of third-party culpability. He requested and

received further information regarding the robberies from the FBI. Because it

appears that no evidence was in fact “suppressed” and that defense counsel had

adequate time to conduct additional investigation, defendant’s Brady claim is

without merit.

2. Prosecution Witness Robert Scott

On April 23, 2002, defense counsel indicated that he had only recently

received “a four-page report from the FBI that was in the possession of the district

attorney pertaining to Robert Scott.” During an ex parte hearing held two days

later, defense counsel explained that the four-page document was a “proffered

statement” from Robert Scott “where he’s presumably looking to cut a deal with

the US Attorney.” Defendant apparently contends that the belated disclosure of

this evidence violated his due process rights.

Defendant’s argument is without merit. Defense counsel received the four-

page “proffered statement” — a letter signed by Robert Scott and addressed to the

district attorney — over two months before the trial began. The letter was

introduced into evidence during the trial, and Scott was cross-examined

extensively regarding its meaning and his motivations for preparing the document.

Among other things, defense counsel elicited that Scott was hoping “to get out

before [he] had to complete the 11 years and six months that [he had been] given”

71

on a robbery conviction by offering “testimony in connection with [defendant’s]

case.” Accordingly, there was no suppression of evidence and no Brady violation.

3. Potential Prosecution Witness Tami Wilkerson

During a hearing on April 23, 2002, defense counsel “cited a need for

information on a prior criminal incident committed by prosecution witness Tami

Wilkerson that could be used to potentially impeach her testimony.” He contends

that the prosecution had possessed this information for several years before it was

turned over. However, defendant does not assert, and the record does not reflect,

that the prosecution ever called Tami Wilkerson to testify. Because there was no

testimony to impeach, defendant’s Brady claim is without merit.

4. Conya L.

Defendant contends that the prosecution violated its Brady obligations by

failing to provide discovery regarding Conya L.’s whereabouts. But defendant

cites no case that has held that the prosecution’s refusal to disclose a witness’s

address, without more, constitutes a Brady violation, and he acknowledges that

none of the cases he cites “explicitly discuss[es] the prosecution’s failure to

provide access to potentially material information.” The absence of any authority

supporting defendant’s position is not surprising. “There is no general

constitutional right to discovery in a criminal case, and Brady did not create one

. . . .” (Weatherford v. Bursey (1977) 429 U.S. 545, 559; see also Wardius v.

Oregon (1973) 412 U.S. 470, 474 [“[T]he Due Process Clause has little to say

regarding the amount of discovery which the parties must be afforded . . . .”].)

Moreover, “Brady does not require the disclosure of information that is of mere

speculative value” (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1472), and

defendant himself concedes that “it remains speculative as to what might have

been discovered.” He acknowledges that there is no way to know “if disclosure of

[Conya L.’s] address would be helpful or harmful to [defendant’s] defense.”

72

Because defendant has not shown that the prosecution withheld evidence that was

both “favorable and material” to the defense (In re Bacigalupo, supra, 55 Cal.4th

at p. 333), his claim is without merit. (We address defendant’s claims that

withholding of Conya L.’s address violated his statutory rights and the

confrontation clause below, post, at pp. 73–85.)

5. Cumulative Impact

“[W]hile the tendency and force of undisclosed evidence is evaluated item

by item, its cumulative effect for purposes of materiality must be considered

collectively.” (In re Brown, supra, 17 Cal.4th at p. 887.) Because we have found

that the prosecution did not suppress any evidence that was favorable to the

defense, we reject defendant’s cumulative error argument.

D. Prosecution Witness Conya L.

Defendant raises a number of arguments regarding the investigation and

examination of the prosecution’s main witness, Conya L. Specifically, he argues

that the state was required to disclose Conya L.’s current address pursuant to

section 1054; that the state prevented defendant from meaningfully cross-

examining Conya L. in violation of the Sixth and Fourteenth Amendments by

failing to disclose her address; and that the trial court improperly limited certain

lines of inquiry during cross-examination in violation of the Sixth and Fourteenth

Amendments. After summarizing the factual background, we address each of

these arguments in turn.

1. Factual Background

On July 15, 1995, Conya L. was attacked and her throat was lacerated by

two knives. After narrowly escaping with her life, she provided an account of the

attacks to the police. Conya L. then fled the state shortly after her release from the

hospital.

73

On December 14, 1995, defendant’s codefendant Ronald Walker requested

a continuance of the preliminary examination. The prosecutor opposed the

request, stating that Conya L. had received a “death threat” and that the

threatening party had represented to Conya L. that he knew where she was and

intended to carry out a “hit” on her in the immediate future.

During the preliminary hearing on January 4, 1996, Conya L. testified at

length and was subject to cross-examination by both defense counsel. At one

point during the hearing, the prosecutor asked Conya L. if she had received any

death threats, and Conya L. answered, “yes.” When the prosecutor attempted to

inquire further, both defense counsel objected on the ground of relevance. Their

objections were sustained.

On February 28, 1997, the parties agreed that Conya L.’s address would be

redacted from her medical records before those documents were turned over to the

defense. On March 7, 1997, however, defense counsel requested unredacted

copies of Conya L.’s medical records, which included her current address. The

trial court instructed the parties to brief the issue.

On May 16, 1997, the prosecution submitted the sealed declaration of Tony

Pradia, an investigator employed by the Riverside County District Attorney’s

Office. Investigator Pradia declared that defendant and his codefendant were

admitted Crips gang members; that Conya L. had received two separate death

threats on or about December 19, 1995, warning her that she would be killed if she

attempted to testify at the preliminary hearing; that Detective Gary Thompson had

received information from an informant that Conya L. and her six-year-old son

would be murdered prior to the preliminary hearing; that Conya L. had been

relocated both before and after the preliminary hearing in response to these threats;

that Conya L.’s continued cooperation was critical to an ongoing investigation into

the identity of the third perpetrator; and that Pradia would not be able to ensure

74

Conya L.’s continued safety if her address were disclosed to the defense. At a

hearing held the same day, defense counsel argued that the alleged threats were

hearsay. She also argued that any danger to Conya L. could be minimized if

Conya L.’s address were disclosed only to defense counsel and not to defendant

himself.

On June 6, 1997, after taking the matter under submission, the trial court

ruled that the prosecution was not required to disclose Conya L.’s address or

telephone number to the defense.

During a hearing on May 1, 2002, Conya L. spoke in support of the

prosecutor’s request to proceed to trial without any further delay. She stated that

she had relocated every time she had received a death threat. She further stated:

“People tell me all the time that the defendant has asked about my whereabouts.

He inquires about my whereabouts. And he sends messages through other people

to give to me. I hear this all the time. And it’s very stressful.”

During the trial, defense counsel called Conya L. as part of the defense

case. Before calling her to the stand, defense counsel indicated to the trial court

that he wished to introduce evidence that Conya L. “had a warrant out for her

arrest at the time” that the crimes were committed. Defense counsel explained that

Conya L. had been convicted of welfare fraud on November 27, 1991 and placed

on probation for two years. As part of her conviction, she was ordered to pay a

$350 fine by February 25, 1992. When Conya L. failed to pay the fine, a warrant

was issued for her arrest. Conya L. did not pay the fine for over three years. The

prosecutor objected that evidence of the warrant should be excluded under

Evidence Code section 352 because it would invite the jury to speculate as to the

reason the warrant had been issued. Citing People v. Wheeler (1992) 4 Cal.4th

284, the trial court responded that “the fact that the warrant was issued on a

Wheeler-type impeachment would not be admissible. The underlying facts are.”

75

Defense counsel then clarified that he wished to introduce evidence of the warrant

not just for impeachment purposes, but also to explain Conya L.’s absence from

the state. The trial court noted that such evidence would “open[] up some doors

that you probably don’t want to open up,” at which point defense counsel

responded: “Okay.”

Defense counsel then called Conya L. to testify. During the examination,

Conya L. admitted that she had been convicted of misdemeanor welfare fraud in

1991. She further admitted that she had lied in an employment application in 1992

by falsely declaring that she had never been convicted of a misdemeanor; she had

signed the application under penalty of perjury. She repeated the same lie in a

1996 employment application, although this time not under penalty of perjury.

Finally, Conya L. admitted that she had been convicted of two misdemeanors in

1994: false impersonation and fraudulent use of a Medi-Cal card.

On cross-examination, the prosecutor attempted to rehabilitate Conya L. by

eliciting that she had been young and poor at the time she had committed the

subject crimes. Before redirect, defense counsel informed the trial court that he

intended to ask Conya L. about her ability to pay the court-ordered fine and

whether she had failed to report income on her applications for government

assistance. The prosecutor objected that this evidence was cumulative, arguing

that Conya L. had already admitted to failing to report income. The trial court

limited this line of inquiry to the following question: “You previously admitted

that you failed to report that income . . . and you signed under penalty of perjury

that you would report all of your income; isn’t that correct?”

2. California Penal Code

Defendant argues that “Conya [L.’s] testimony was the State’s case.” He

notes that she was the sole percipient witness and that there was no forensic

evidence linking anyone to the charged crimes. Indeed, as the prosecutor himself

76

remarked, the prosecution’s case “hing[ed] substantially, if not entirely, upon

[Conya L.’s] identification” of the individuals responsible for the crime.

In light of the crucial importance of her testimony, defendant argues that

the prosecution was required to disclose Conya L.’s address pursuant to section

1054. He further contends that the prosecution’s failure to disclose this

information precluded meaningful confrontation and cross-examination of this

important witness in violation of the Sixth and Fourteenth Amendments to the

United States Constitution.

Under the Penal Code, the prosecutor must disclose the names and

addresses of the individuals whom he intends to call at trial. (§ 1054.1, subd. (a).)

“The disclosure may be made to defense counsel, who is prohibited from

revealing, to the defendant or others, information that identifies the address or

telephone number of the prosecution’s potential witnesses, absent permission by

the court after a hearing and a showing of good cause. (§ 1054.2.) . . . . Absent a

formal court order directing earlier disclosure, discovery must be provided at least

30 days prior to trial, ‘unless good cause is shown why a disclosure should be

denied, restricted, or deferred.’ (§ 1054.7.) ‘Good cause’ is defined for purposes

of this provision as ‘threats or possible danger to the safety of a victim or witness,

possible loss or destruction of evidence, or possible compromise of other

investigation by law enforcement.’ (Ibid.) Section 1054.7 additionally provides

that upon the request of any party, the court may permit a showing of good cause

— for the denial or regulation of disclosures — to be made in camera.” (Alvarado

v. Superior Court (2000) 23 Cal.4th 1121, 1132–1133 (Alvarado).) “Orders under

this section are subject to review for abuse of discretion.” (People v. Panah

(2005) 35 Cal.4th 395, 458.) We have held that these provisions of the Penal

Code are constitutional (Izazaga v. Superior Court (1991) 54 Cal. 3d 356), and

that “[a] defendant does not have a fundamental due process right to pretrial

77

interviews or depositions of prosecution witnesses” (Panah, supra, 35 Cal.4th at

458).

Notwithstanding defendant’s assertions to the contrary, the trial court

clearly had “good cause” to deny disclosure of Conya L.’s address. As noted,

Conya L.’s testimony was crucial to the prosecution’s case. Conya L. testified that

she had received death threats, and Investigator Pradia submitted a sworn

declaration stating that Conya L.’s life had been threatened and that disclosure of

her address would jeopardize her safety and compromise the integrity of an

ongoing investigation. Because there were “threats or possible danger to the

safety of a victim or witness, possible loss or destruction of evidence, [and]

possible compromise of other investigations by law enforcement” (§ 1054.7), the

trial court did not abuse its discretion in finding good cause to deny defendant’s

request.

This text is long and has been trimmed here. Open the source document for the complete record.